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Eastern District of New York - LIVE Database V6.2.1
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U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:10-cv-04334-JFB-AYS

Zarda v. Altitude Express, Inc. et al Assigned to: Judge Joseph F. Bianco Referred to: Magistrate Judge Anne Y. Shields Cause: 28:1331 Fed. Question: Fair Labor Standards

Date Filed: 09/23/2010 Date Terminated: 10/28/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Melissa Zarda co-independent executors of the estate of Donald Zarda

represented by Gregory S. Antollino Gregory Antollino, Esq. 275 Seventh Avenue Suite 705 New York, NY 10001 212-334-7397 Fax: 212-334-7399 Email: gantollino@nyc.rr.com ATTORNEY TO BE NOTICED

Plaintiff
William Allen Moore, Jr. co-independent executor of the estate of Donald Zarda

Richard J. Cardinale The Law Firm of Richard J. Cardinale 26 Court Street Suite 1815 Brooklyn, NY 11242 718-624-9391 Fax: 718-624-4748 Email: richcardinale@gmail.com ATTORNEY TO BE NOTICED
represented by Gregory S. Antollino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Altitude Express, Inc. doing business as Skydive Long Island

represented by Saul D. Zabell Zabell & Associates, P.C. 4875 Sunrise Highway Suite 300 Bohemia, NY 11716 631-589-7242 Fax: 631-563-7475

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Defendant Ray Maynard

Eastern District of New York - LIVE Database V6.2.1
Email: SZabell@laborlawsny.com ATTORNEY TO BE NOTICED
represented by Saul D. Zabell (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

09/23/2010

1 COMPLAINT against Altitude Express, Inc., Ray Maynard Disclosure Statement on Civil Cover Sheet completed -NO,, ﬁled by Donald Zarda. (Attachments: # 1 Civil Cover Sheet) (Serret, Liliana) (Entered: 09/29/2010)

09/23/2010

FILING FEE: $ 350.00, receipt number 4653019994 (Serret, Liliana) (Entered: 09/29/2010)

09/23/2010

Summons Issued as to Altitude Express, Inc., Ray Maynard. (Serret, Liliana) (Entered: 09/29/2010)

09/30/2010

Case Ineligible for Arbitration (Bollbach, Jean) (Entered: 09/30/2010)

10/21/2010

2 SUMMONS Returned Executed by Donald Zarda. Altitude Express, Inc. served on 9/27/2010, answer due 10/18/2010. (Antollino, Gregory) (Entered: 10/21/2010)

10/21/2010

3 WAIVER OF SERVICE Returned Executed by Donald Zarda. Ray Maynard waiver sent on 9/24/2010, answer due 11/23/2010. (Antollino, Gregory) (Entered: 10/21/2010)

11/01/2010

4 NOTICE of Appearance by Saul D. Zabell on behalf of Altitude Express, Inc., Ray Maynard (aty to be noticed) (Zabell, Saul) (Entered: 11/01/2010)

11/23/2010

5 Letter MOTION for pre motion conference re 1 Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 11/23/2010)

11/23/2010

ORDER granting 5 Motion for Pre Motion Conference. The Court has received the defendants' letter, dated November 23, 2010, requesting a pre-motion conference in anticipation of moving to dismiss. IT IS HEREBY ORDERED that the parties shall participate in a telephone pre-motion conference on Wednesday, December 8, 2010 at 2:00 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. Prior to the date of the conference, plaintiff may submit a letter pursuant to Individual Rule III.A explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/23/2010. (Cooney, John) (Entered: 11/23/2010)

11/30/2010

6 Letter in response to request for premotion conference by Donald Zarda (Attachments: # 1 Exhibit cited case) (Antollino, Gregory) (Entered: 11/30/2010)

11/30/2010

7 MOTION to Adjourn Conference to an earlier or later time the same day by Donald Zarda. (Antollino, Gregory) (Entered: 11/30/2010)

12/01/2010

ORDER granting 7 Motion to Adjourn Conference. By letter dated November 30, 2010, plaintiff requested to reschedule the December 8, 2010 pre-motion conference. IT IS HEREBY ORDERED that plaintiff's request is granted. The pre-motion conference is rescheduled for Thursday, December 9, 2010 at 1:30 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/1/2010. (Cooney, John) (Entered: 12/01/2010)

12/09/2010

8 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 12/9/2010; motion to be ﬁled by 1/10/11; response by 2/10/11; relpy

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by 2/24/11; oral argument 3/11/11 at 1:30 pm; submit the proposed scheudle to the court by 12/17/10 (Court Reporter ftr 1:38 - 1:51.) (Bollbach, Jean) (Entered: 12/09/2010)

12/09/2010

ORDER. IT IS HEREBY ORDERED that the automatic referral to the Magistrate Judge for non-dispositive pretrial matters under Local Civil Rule 72.2 is withdrawn in this case and all proceedings, including discovery conferences and all other non-dispositive pretrial matters, will occur before the District Judge, unless a speciﬁc referral is made to the Magistrate Judge at some future time. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/9/2010. (Cooney, John) (Entered: 12/09/2010)

12/10/2010

9 Proposed Scheduling Order by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 12/10/2010)

12/10/2010

10 SCHEDULING ORDER: deadline for commencement of moiton for joinder of additional parties or amendement of pleadings: March 4, 2011; discovery by Sept. 9, 2011; dispositive motion by Oct. 7, 2011; ﬁnal conf. Oct 21, 2011 at 10:00 am. Ordered by Judge Joseph F. Bianco on 12/10/2010. (Bollbach, Jean) (Entered: 12/14/2010)

12/16/2010

11 Corporate Disclosure Statement by Altitude Express, Inc. (Zabell, Saul) (Entered: 12/16/2010)

01/10/2011 12 Letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 01/10/2011)

01/10/2011

13 ANSWER to 1 Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 01/10/2011)

02/04/2011

14 First MOTION for Discovery Hearing or Conference by Donald Zarda. (Antollino, Gregory) (Entered: 02/04/2011)

02/07/2011

ORDER re 14 : The plaintiff's application must be redirected to Judge Bianco. By order dated December 9, 2010, Judge Bianco withdrew the automatic referral to the undersigned for non-dispositive pretrial matters. Ordered by Magistrate Judge Arlene R. Lindsay on 2/7/2011. c/ecf (Miller, Dina) (Entered: 02/07/2011)

02/07/2011

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Wednesday, February 9, 2011 at 4:00 p.m. to discuss plaintiff's letter dated February 4, 2011. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/7/2011. (Cooney, John) (Entered: 02/07/2011)

02/07/2011

15 RESPONSE in Opposition re 14 First MOTION for Discovery Hearing or Conference ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/07/2011)

02/09/2011

16 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 2/9/2011. (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 02/10/2011)

02/11/2011

17 Letter MOTION to Compel Discovery by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/11/2011)

02/11/2011

18 RESPONSE to Motion re 17 Letter MOTION to Compel Discovery ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 02/11/2011)

02/11/2011

19 Letter MOTION to Compel Discovery by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 02/11/2011)

02/15/2011

SCHEDULING ORDER: The Court has received the defendants' letter informing the court of a discovery dispute. IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Friday, February 25, 2011 at 2:30 p.m. At that time, counsel

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for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/15/2011. (Cooney, John) (Entered: 02/15/2011)
20 Letter MOTION to Adjourn Conference scheduled for February 25, 2011 at 2:30 pm by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/16/2011)
SCHEDULING ORDER:The Court has received the defendants' letter requesting an adjournment of the telephone conference scheduled for February 25, 2011. IT IS HEREBY ORDERED that the telephone conference is rescheduled for Tuesday, March 1, 2011 at 2:30 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/18/2011. (Cooney, John) (Entered: 02/18/2011)
21 MOTION to Amend/Correct/Supplement 1 Complaint by Donald Zarda. (Attachments: # 1 Exhibit proposed amended complaint) (Antollino, Gregory) (Entered: 02/22/2011)
22 RESPONSE in Opposition re 21 MOTION to Amend/Correct/Supplement 1 Complaint ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/23/2011)
23 REPLY in Support re 21 MOTION to Amend/Correct/Supplement 1 Complaint ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 02/23/2011)
SCHEDULING ORDER: Due to a conﬂict in the Court's calendar, the telephone conference concerning the discovery dispute scheduled for March 1, 2011 is rescheduled for Friday, March 4, 2011 at 1:15 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/28/2011. (Cooney, John) (Entered: 02/28/2011)
24 Letter MOTION to Adjourn Conference currently scheduled for March 4, 2011 at 1:15 p.m. by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/28/2011)
ORDER granting 24 Motion to Adjourn Conference. The Court has received the defendants' letter requesting an adjournment of the telephone conference concerning the discovery dispute scheduled for March 4, 2011. IT IS HEREBY ORDERED that the telephone conference is rescheduled for Friday, March 11, 2011 at 9:30 a.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/2/2011. (Cooney, John) (Entered: 03/02/2011)
25 Letter Requesting pre-motion conference by Donald Zarda (Antollino, Gregory) (Entered: 03/08/2011)
SCHEDULING ORDER: The Court has received the plaintff's letter, dated March 8, 2011, requesting a pre-motion conference in anticipation of moving to disqualify defendants' counsel. IT IS HEREBY ORDERED that the parties shall discuss this matter at the telephone conference concerning the discovery dispute scheduled for March 11, 2011 at 9:30 a.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/9/2011. (Cooney, John) (Entered: 03/09/2011)
26 REPLY in Opposition re 25 Letter ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/10/2011)
27 Minute Order. for proceedings held before Judge Joseph F. Bianco:granting 21 Motion to Amend/Correct/Supplement; Telephone Conference held on 3/11/2011. Amended complaint to be ﬁled by 3/18/11 (Court Reporter ftr 9:47 - 10:02.) (Bollbach, Jean) (Entered: 03/11/2011)

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03/11/2011

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28 AMENDED COMPLAINT against Altitude Express, Inc., Ray Maynard, ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 03/11/2011)

03/11/2011

29 ORDER granting 19 Motion to Compel; ( Amended Pleadings due by 3/18/2011.) The amended complaint shall be ﬁled no later than March 18, 2011. ( Signed by: Joseph F. Bianco, United States District Judge, on March 11, 2011). (Fagan, Linda) (Entered: 03/16/2011)

03/22/2011

30 ANSWER to 28 Amended Complaint by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/22/2011)

04/08/2011

31 First MOTION to Compel by Donald Zarda. (Attachments: # 1 Exhibit Waiver form) (Antollino, Gregory) (Entered: 04/08/2011)

04/12/2011

32 RESPONSE in Opposition re 31 First MOTION to Compel ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 04/12/2011)

04/12/2011

33 REPLY in Support re 31 First MOTION to Compel ﬁled by Donald Zarda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Antollino, Gregory) (Entered: 04/12/2011)

04/13/2011

34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Zabell, Saul) (Entered: 04/13/2011)

04/13/2011

35 MOTION to Strike 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. as excessive and in violation of the local rules and the Court's individual rules by Donald Zarda. (Antollino, Gregory) (Entered: 04/13/2011)

04/13/2011

36 Letter in response to Plaintiff's surreply by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 04/13/2011)

04/14/2011

37 RESPONSE in Opposition re 35 MOTION to Strike 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. as excessive and in violation of the local rules and the Court's individual rules ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/14/2011)

04/14/2011

38 Letter MOTION for pre motion conference by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit) (Zabell, Saul) (Entered: 04/14/2011)

04/18/2011

39 Letter in response to request for premotion conference to quash subpoena by Donald Zarda (Antollino, Gregory) (Entered: 04/18/2011)

05/05/2011

40 Letter concerning new matters in discovery by Donald Zarda (Antollino, Gregory) (Entered: 05/05/2011)

05/05/2011

41 REPLY in Opposition to Plaintiff's 5/5/11 letter concerning new matters in discovery ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 05/05/2011)

05/05/2011

42 Letter in further support of discovery by plaintiff and other relief by Donald Zarda (Antollino, Gregory) (Entered: 05/05/2011)

05/06/2011

ORDER. By letter dated May 5, 2011, plaintiff requests a pre-motion conference on the issue of disqualifying counsel for defendants from representing non-party witnesses. IT IS HEREBY ORDERED that the pre-motion conference requirement is waived. The parties shall adhere to the following brieﬁng schedule for plaintiff's motion. Plaintiff's motion is due June 6, 2011; Defendants' response is due July 6, 2011; Plaintiff's reply is due July 20, 2011. The Court will determine if oral argument is necessary after the matter is fully submitted. IT IS FURTHER ORDERED that plaintiff's pending motion to strike defendants' 176-page discovery motion is denied. IT IS FURTHER ORDERED that the parties abide by the following brieﬁng schedule: plaintiff's opposition is due by May 27,

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2011 and defendants' reply is due June 8, 2011. IT IS FURTHER ORDERED that the page limit requirement is waived for plaintiff's opposition. IT IS FURTHER ORDERED that the Court will consider plaintiff's request to compel plaintiff's deposition after the above-referenced matters are decided. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/6/2011. (Cooney, John) (Entered: 05/06/2011)
43 Letter regarding Your Honor's May 6, 2011 Order by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 05/12/2011)
44 Letter in response to defendants' letter of 5/12/11 by Donald Zarda (Antollino, Gregory) (Entered: 05/12/2011)
45 MEMORANDUM in Opposition re 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. ﬁled by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Antollino, Gregory) (Entered: 05/27/2011)
46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Errata G) (Antollino, Gregory) (Entered: 06/06/2011)
47 MEMORANDUM in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 06/06/2011)
48 MEMORANDUM in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief SIGNED LETTER BRIEF (DOCUMENT # 47 IS UNSIGNED) ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 06/06/2011)
49 REPLY in Support re 34 MOTION to Compel Discovery or Production of Documents under F.R.C.P. 37 et seq. ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 06/08/2011)
50 MEMORANDUM in Opposition re 48 Memorandum in Support ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Declaration of Saul Zabell, Esq.) (Zabell, Saul) (Entered: 07/06/2011)
51 REPLY in Support re 46 MOTION to Disqualify Counsel and to hold two witnesses in contempt and for other relief ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 07/13/2011)
52 Letter MOTION for Extension of Time to Complete Discovery by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 08/09/2011)
SCHEDULING ORDER: IT IS HEREBY ORDERED that oral argument is scheduled for Wednesday, August 24, 2011 at 2:00 p.m. for plaintiff's motion to disqualify counsel from representing non-party witnesses and defendants' motion to compel. In addition, the Court has received defendants' request for an extension of time to complete discovery. IT IS FURTHER ORDERED that a new discovery deadline will be set following the Court's ruling on the pending motions. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/10/2011. (Cooney, John) (Entered: 08/10/2011)
53 Letter MOTION to Adjourn Conference by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 08/10/2011)
ORDER granting 53 Motion to Adjourn Conference. By letter dated August 10, 2011, defendants request to adjourn the oral argument scheduled for August 24, 2011 until after Labor Day. IT IS HEREBY ORDERED that, on consent, defendants' request is granted. Oral argument concerning plaintiff's motion to disqualify counsel from representing non-

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party witnesses and defendants' motion to compel is rescheduled for Monday, September 12, 2011 at 3:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/11/2011. (Cooney, John) (Entered: 08/11/2011)
54 Second MOTION to Adjourn Conference for September 12 to September 19 by Donald Zarda. (Antollino, Gregory) (Entered: 08/24/2011)
ORDER granting 54 Motion to Adjourn Conference. By letter dated August 24, 2011, plaintiff requests to adjourn the oral argument scheduled for September 12, 2011 until September 19, 2011 at 4:30 p.m. IT IS HEREBY ORDERED that, on consent, plaintiff's request is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/24/2011. (Cooney, John) (Entered: 08/24/2011)
55 Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 9/19/2011 at 4:30. Attorney for plaintiff, Gregory Antollino present. Saul Zabell attorney for defendant present. Case called. Conference held. Argument heard. Plaintiff's motion to compel; within 10 days, def's to produce names and addresses of co-workers for 2009 and 2010 summers, names and addresses of two customers at issue and jump log. Defts.' motion to compel plaintiff to produce any facebook communication from 2008-10 that expressed emotional trauma and tax returns. Other ﬁnancial records related to other company is denied at this juncture. Medical treatment records from 2008-present to be provided to the Court for ex parte in camera review. Denied in all other respects. Plaintiffs' motion to disqualify counsel is denied. Motion for costs denied. Parties to submit deposition schedule, with plaintiff proceeding ﬁrst, to the Court within two weeks. (Tape #4:41-5:41.) (Padilla, Kristin) (Entered: 10/03/2011)
56 Letter informing the court as to agreed upon discovery deadline by Donald Zarda (Antollino, Gregory) (Entered: 10/19/2011)
SCHEDULING ORDER: IT IS HEREBY ORDERED that discovery in this case shall end on March 23, 2012. The parties shall participate in a telephone conference on Wednesday, April 4, 2012 at 11:00 a.m. At that time, counsel for the plaintiff shall initiate the call, and once all parties are on the line, shall contact chambers at (631)712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/20/2011. (Maxwell, Rita) (Entered: 10/20/2011)
57 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 11/15/2011; RE: deposition dispute. Non-party witnesses David Kenglo and Rose Orellana want to be deposed together at the same time. Court rules that the non-party witnesses will be deposed separately and will not be present at each other's deposition. (Tape #ftr 1:32 - 1:41.) (Bollbach, Jean) (Entered: 11/16/2011)
Magistrate Judge Gary R. Brown added. Magistrate Judge Arlene R. Lindsay no longer assigned to case. (Bowens, Priscilla) (Entered: 11/18/2011)
ORDER terminating 52 Motion for Extension of Time to Complete Discovery. Motion terminated. See Scheduling Order dated October 20, 2011. Ordered by Judge Joseph F. Bianco on 12/9/2011. (Maxwell, Rita) (Entered: 12/09/2011)
ORDER terminating 35 Motion to Strike. Motion terminated. See Order dated May 6, 2011. Ordered by Judge Joseph F. Bianco on 12/9/2011. (Maxwell, Rita) (Entered: 12/09/2011)
ORDER terminating 31 Motion to Compel; terminating 34 Motion to Compel; terminating 38 Motion for Pre Motion Conference; terminating 46 Motion to Disqualify Counsel. Motions terminated. See Docket Entry 55. Ordered by Judge Joseph F. Bianco on 12/12/2011. (Maxwell, Rita) (Entered: 12/12/2011)

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12/15/2011

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58 MOTION for Discovery to compel a subpoena by Donald Zarda. (Attachments: # 1 Exhibit) (Antollino, Gregory) (Entered: 12/15/2011)

12/15/2011

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Friday, December 16, 2011 at 9:30 a.m. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/15/2011. (Maxwell, Rita) (Entered: 12/15/2011)

12/16/2011

59 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 12/16/2011 - re: deposition dispute. Deposition to take place 12/21/11 as discussed on the record (Tape #ftr 9:40 - 9:46.) (Bollbach, Jean) (Entered: 12/16/2011)

12/16/2011

ORDER terminating 58 Motion for Discovery, Motion terminated. See docket entry 59. Ordered by Judge Joseph F. Bianco on 12/16/2011. (Maxwell, Rita) (Entered: 12/16/2011)

02/18/2012

60 Letter requesting brieﬁng schedule, etc. by Donald Zarda (Antollino, Gregory) (Entered: 02/18/2012)

02/21/2012

SCHEDULING ORDER: By letter dated February 18, 2012, plaintiff requests a brieﬁng schedule regarding outstanding discovery disputes. IT IS HEREBY ORDERED that the parties shall abide by the following brieﬁng schedule: motions regarding outstanding discovery shall be ﬁled by March 21, 2012; oppositions shall be ﬁled by April 23, 2012; reply briefs shall be ﬁled by May 7, 2012; oral argument shall be held on Wednesday, June 13, 2012 at 2:00 p.m. IT IS FURTHER ORDERED that the page limitations of the Local Rules are waived for this brieﬁng. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/21/2012. (Maxwell, Rita) (Entered: 02/21/2012)

03/21/2012

61 Second MOTION to Compel , Second MOTION for Sanctions , Second MOTION for Extension of Time to Complete Discovery by Donald Zarda. (Antollino, Gregory) (Entered: 03/21/2012)

03/21/2012

62 DECLARATION re 61 Second MOTION to Compel Second MOTION for Sanctions Second MOTION for Extension of Time to Complete Discovery by Donald Zarda (Attachments: # 1 Exhibit A-Maynard Dep., # 2 Exhibit B-Picture of timer, # 3 Exhibit C- Winstock Dep, # 4 Exhibit D-Orellana Dep., # 5 Exhibit E-Kengle Dep., # 6 Exhibit F-Callanan Dep., # 7 Exhibit G- D's response to P's 2d ComBined demand, # 8 Exhibit HApparent Ripoff Report Complaint, # 9 Exhibit I- Apparent REsponse by Maynard to Ripoff report, # 10 Exhibit J Declaration of Saul Zabell, # 11 Exhibit K- emails between Antollino and Zabell, # 12 Exhibit L - portion of deposition in unrelated case, # 13 Exhibit M - portion of defendants' amended document response, # 14 Exhibit N - Letter from Zabell to Antollino, # 15 Exhibit O - Letter from Zabell to Court, # 16 Exhibit P email to defendant regarding Zarda, # 17 Exhibit Q- Letter of Saul Zabell to Court 4/12/11, # 18 Exhibit R- Sanchez declaration, # 19 Exhibit S - portions of deposition of Donald Zarda) (Antollino, Gregory) (Entered: 03/21/2012)

03/21/2012

63 MEMORANDUM in Support re 61 Second MOTION to Compel Second MOTION for Sanctions Second MOTION for Extension of Time to Complete Discovery ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 03/21/2012)

04/03/2012

ORDER. In light of the on-going brieﬁng and upcoming oral argument regarding the parties' discovery disputes, IT IS HEREBY ORDERED that the conference scheduled for April 4, 2012 is canceled. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/3/2012. (Maxwell, Rita) (Entered: 04/03/2012)

04/23/2012

64 MEMORANDUM in Opposition to Plaintiff's Motion to Compel ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/23/2012)

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04/23/2012
05/07/2012
05/14/2012 05/14/2012 05/15/2012 06/12/2012 06/13/2012
06/20/2012 06/22/2012 06/26/2012 07/17/2012 07/20/2012 07/20/2012
07/20/2012

Eastern District of New York - LIVE Database V6.2.1
65 AFFIDAVIT/DECLARATION in Opposition re 61 Second MOTION to Compel Second MOTION for Sanctions Second MOTION for Extension of Time to Complete Discovery of Saul Zabell ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Zabell, Saul) (Entered: 04/23/2012)
66 REPLY in Support re 61 Second MOTION to Compel Second MOTION for Sanctions Second MOTION for Extension of Time to Complete Discovery ﬁled by Donald Zarda. (Attachments: # 1 Exhibit A - portion Zarda Dep.) (Antollino, Gregory) (Entered: 05/07/2012)
67 Letter Regarding Plaintiff's Request for Sanctions by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 05/14/2012)
68 Letter in response to Mr. Zabell's request to expand the record by Donald Zarda (Antollino, Gregory) (Entered: 05/14/2012)
69 Letter in further response to Mr. Zabell's May 14 letter by Donald Zarda (Attachments: # 1 Exhibit documents referenced in letter) (Antollino, Gregory) (Entered: 05/15/2012)
70 Letter regarding additional information for the June 13 oral argument by Donald Zarda (Attachments: # 1 Exhibit 1 Transcript, # 2 Exhibit 2 Subpoena from Zabell 5/24, # 3 Exhibit 3 Email cancelling deposition) (Antollino, Gregory) (Entered: 06/12/2012)
71 Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 6/13/2012 - letter to be submitted to the court by 6/20/12. Letter response to be submitted to the court by 6/17/12. Discovery is extended to 11/30/12 (Bollbach, Jean) (Entered: 06/14/2012)
72 First MOTION for Protective Order by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Zabell, Saul) (Entered: 06/20/2012)
73 REPLY to Response to Motion re 72 First MOTION for Protective Order and CROSS MOTION for certain relief ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 06/22/2012)
74 REPLY to Response to Motion re 72 First MOTION for Protective Order ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 06/26/2012)
75 ORDER denying 72 Motion for Protective Order. ORDERED that plaintiff is entitles to documentation regarding the days in which he worked but did not jump. Ordered by Judge Joseph F. Bianco on 7/17/2012. (Bollbach, Jean) (Entered: 07/18/2012)
76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition by Donald Zarda. (Antollino, Gregory) (Entered: 07/20/2012)
77 DECLARATION re 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition declaration of Kenji Yoshino by Donald Zarda (Attachments: # 1 Exhibit A-Yoshino Report, # 2 Exhibit B-Yoshino cv, # 3 Exhibit C- Subpoena & letter from Zabell, # 4 Exhibit D - Yohsino's hours of preparation before cancellation of deposition) (Antollino, Gregory) (Entered: 07/20/2012)
78 DECLARATION re 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition Declaration of Gregory Antollino by Donald Zarda (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Antollino, Gregory) (Entered: 07/20/2012)

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07/20/2012 07/20/2012 07/20/2012 07/27/2012 08/06/2012 08/06/2012 08/06/2012 08/07/2012
08/08/2012
08/31/2012
08/31/2012
09/07/2012 09/10/2012 09/10/2012 09/10/2012

Eastern District of New York - LIVE Database V6.2.1
79 MEMORANDUM in Support re 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 07/20/2012)
80 Letter regarding motion by Donald Zarda (Antollino, Gregory) (Entered: 07/20/2012)
81 Letter requesting permission to move it defendants do not produce previously ordeed discovery within a reasonable time by Donald Zarda (Antollino, Gregory) (Entered: 07/20/2012)
82 Letter responding to Plaintiff's request to move if Defendants do not produce discovery within a reasonable time by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 07/27/2012)
83 Letter regarding Defendants' Opposition to Plaintiff's Request for the Admission of Expert Testimony and Payment of Fees by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 08/06/2012)
84 MEMORANDUM in Opposition to Plaintiff's Request for Admission of Expert Testimony and Payment of Preparation Fees ﬁled by All Defendants. (Zabell, Saul) (Entered: 08/06/2012)
85 DECLARATION re 84 Memorandum in Opposition to Plaintiff's Request for Admission of Expert Testimony and Payment of Preparation Fees by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 08/06/2012)
86 MOTION for Extension of Time to File Response/Reply as to 79 Memorandum in Support, 77 Declaration, 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition, 81 Letter, 82 Letter, 83 Letter, 84 Memorandum in Opposition, 80 Letter, 78 Declaration, 85 Declaration by Donald Zarda. (Antollino, Gregory) (Entered: 08/07/2012)
ORDER granting 86 Motion for Extension of Time to File Response/Reply. By letter dated August 7, 2012, plaintiff's counsel requests that he be allowed to ﬁle his motion in limine reply brief by August 31, 2012. IT IS HEREBY ORDERED that plaintiff's request is granted. Plaintiff may ﬁle his reply brief on or before August 31, 2012. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/8/2012. (Maxwell, Rita) (Entered: 08/08/2012)
87 REPLY in Support re 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition (Reply Declaration & Exhibits) ﬁled by Donald Zarda. (Attachments: # 1 Exhibit Exhibits A-D, # 2 Exhibit Exhibit E, # 3 Exhibit Exhibit F) (Antollino, Gregory) (Entered: 08/31/2012)
88 REPLY in Support re 76 MOTION in Limine to admit Professor Kenji Yoshino's Opinion and to make defendant pay for 8.75 hours of preparation time for a deposition REEPLY MEMO ﬁled by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Antollino, Gregory) (Entered: 08/31/2012)
89 Letter regarding defendant's continued failure to produce discovery ordered in June by Donald Zarda (Antollino, Gregory) (Entered: 09/07/2012)
90 Letter application to ﬁle surreply by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 09/10/2012)
91 Letter in opposition to sur-reply by Donald Zarda (Antollino, Gregory) (Entered: 09/10/2012)
92 Letter in response to Plaintiff's ecf ﬁling Document 89 by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 09/10/2012)

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09/11/2012
10/03/2012 10/04/2012 10/06/2012 10/17/2012 10/19/2012 11/06/2012 11/07/2012 11/07/2012 11/08/2012
11/08/2012
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SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in oral argument on Thursday, October 4, 2012, at 4:30 p.m., regarding plaintiff's in limine motion ﬁled July 20, 2012 and the recent correspondence of the parties. No oral argument will be held on September 12, 2012. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/11/2012. (Maxwell, Rita) (Entered: 09/11/2012)
93 Letter re status of discovery ordered in June by Donald Zarda (Antollino, Gregory) (Entered: 10/03/2012)
94 Minute Entry for proceedings held before Judge Joseph F. Bianco:Status Conference/oral argument held on 10/4/2012 - argument heard - decision reserved (Tape #ftr 4:51 - 5:48.) (Bollbach, Jean) (Entered: 10/05/2012)
95 Letter regarding documents produced and follow up on Sassaman v. Ganache by Donald Zarda (Antollino, Gregory) (Entered: 10/06/2012)
96 STIPULATION AND PROPOSED ORDER FOR COURT'S SIGNATURE by Donald Zarda (Antollino, Gregory) (Entered: 10/17/2012)
97 ORDER OF CONFIDENTIALITY: for the protection and exchange of conﬁdential information and documents. See order for full details.. Ordered by Judge Joseph F. Bianco on 10/19/2012. (Bollbach, Jean) (Entered: 10/25/2012)
98 Second MOTION to Compel additional time to depose Ray Maynard based on new additional factors by Donald Zarda. (Attachments: # 1 Afﬁdavit of Ray Maynard, # 2 decision referenced in letter) (Antollino, Gregory) (Entered: 11/06/2012)
99 RESPONSE in Opposition re 98 Second MOTION to Compel additional time to depose Ray Maynard based on new additional factors ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 11/07/2012)
100 REPLY in Support re 98 Second MOTION to Compel additional time to depose Ray Maynard based on new additional factors ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 11/07/2012)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Tuesday, November 13, 2012 at 9:00 a.m. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/8/2012. (Samplin, Ilissa) (Entered: 11/08/2012)
101 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/4/2012, before Judge Joseph F. Bianco. Transcriber Terry Gribben's Transcription Service, Telephone number 732-263-0044. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/29/2012. Redacted Transcript Deadline set for 12/10/2012. Release of Transcript Restriction set for 2/6/2013. (Russo, Eric) (Entered: 11/08/2012)
102 Letter MOTION to Adjourn Conference to an alternate time by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 11/09/2012)
ORDER granting 102 Motion to Adjourn Conference. By letter dated November 9, 2012, defendants' counsel requests, on consent, an adjournment of the telephone conference scheduled for Tuesday, November 13, 2012 at 9:00 a.m. to a time later in the day. Unfortunately, a time later in the day is not available. IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Wednesday, November 14, 2012 at 9:00 a.m. At that time, counsel for plaintiff shall initiate the call and, once all parties

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are on the line, contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/9/2012. (Samplin, Ilissa) (Entered: 11/09/2012)

11/14/2012

103 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 11/14/2012 (Tape #ftr 9:20 - 9:30.) (Bollbach, Jean) (Entered: 11/14/2012)

11/30/2012

104 Letter MOTION for pre motion conference regarding Summary Judgment by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 11/30/2012)

11/30/2012

ORDER granting 104 Motion for Pre Motion Conference. The Court has received defendants' letter requesting a pre-motion conference in anticipation of moving for summary judgment. IT IS HEREBY ORDERED that the parties shall participate in a telephone pre-motion conference on Monday, December 17, 2012 at 4:30 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. Prior to the date of the conference, plaintiff may submit a letter pursuant to Individual Rule III.A explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/30/2012. (Samplin, Ilissa) (Entered: 11/30/2012)

11/30/2012

105 MOTION to Adjourn Conference Actually to advance the conference would be a more accurate word to characterize my request. by Donald Zarda. (Antollino, Gregory) (Entered: 11/30/2012)

12/03/2012

ORDER granting 105 Motion to Adjourn Conference. The Court has received plaintiff's letter dated November 30, 2012, requesting that the pre-motion conference be moved. IT IS HEREBY ORDERED that the pre-motion conference is now scheduled for Thursday, December 13, 2012 at 3:00 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. Prior to the date of the conference, plaintiff may submit a letter pursuant to Individual Rule III.A explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/3/2012. (Samplin, Ilissa) (Entered: 12/03/2012)

12/04/2012 106 Letter in response to defendant's pre-motion letter by Donald Zarda (Attachments: # 1 Exhibit) (Antollino, Gregory) (Entered: 12/04/2012)

12/13/2012

107 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone status Conference held on 12/13/2012 - motion to be ﬁled by 1/28/13; response and cross motion by 3/13/13; reply and opposition by 3/27/13; reply by 4/10/13; oral argument 5/29/13 at 4:30 pm (Tape #ftr 3:10 - 3:15.) (Bollbach, Jean) (Entered: 12/13/2012)

12/28/2012 108 First MOTION for Extension of Time to File Summary Judgment by Altitude Express, Inc.. (Zabell, Saul) (Entered: 12/28/2012)

12/28/2012

ORDER granting 108 Motion for Extension of Time to File: By letter dated December 28, 2012, defendants request on consent an extension of time to ﬁle their motion for summary judgment. IT IS HEREBY ORDERED that defendants' request is granted. Motion to be ﬁled by February 11, 2013; Response and cross motion to be ﬁled by March 27, 2013; Reply and opposition to be ﬁled by April 10, 2013; Reply to be ﬁled by May 1, 2013. Oral argument remains on Wednesday, May 29, 2013 at 4:30 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/28/2012. (Pilmar, Philip) (Entered: 12/28/2012)

02/11/2013

109 MEMORANDUM in Support of Defendants' Motion for Summary Judgment ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/11/2013)

02/11/2013

110 RULE 56.1 STATEMENT in Support of Defendants' Motion for Summary Judgment ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/11/2013)

02/11/2013 111 AFFIDAVIT/DECLARATION in Support re 104 Letter MOTION for pre motion

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conference regarding Summary Judgment , Defendants' Motion for Summary Judgment ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16) (Zabell, Saul) (Entered: 02/11/2013)

02/19/2013

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference on Wednesday, February 20, 2013 at 1:30 p.m at which time the Court will rule on plaintiff's expert motion. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/19/2013. (Samplin, Ilissa) (Entered: 02/19/2013)

02/19/2013

112 First MOTION to Adjourn Conference for 2/20/13 by Donald Zarda. (Antollino, Gregory) (Entered: 02/19/2013)

02/19/2013

ORDER granting 112 Motion to Adjourn Conference. The Court has received counsel for plaintiff's letter requesting an adjournment of the oral ruling scheduled for Wednesday, February 20, 2013. IT IS HEREBY ORDERED that counsel's request is granted. The telephone conference is rescheduled for Friday, February 22, 2013 at 1:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/19/2013. (Samplin, Ilissa) (Entered: 02/19/2013)

02/22/2013

113 Minute Entry for proceedings held before Judge Joseph F. Bianco:Status Conference/bench ruling held on 2/22/2013 - decision made on the record (Tape #ftr 1:18 - 1:40.) (Bollbach, Jean) (Entered: 02/22/2013)

02/22/2013

114 ORDER terminating 76 Motion in Limine - plaintiffs motion to admit the expert testiony of Processor Kenji Yoshino is denied and plaitniffs motion for payment of fees is granted, but modiﬁed amount of $1,837.50. Ordered by Judge Joseph F. Bianco on 2/22/2013. (Bollbach, Jean) (Entered: 02/25/2013)

03/08/2013

115 First MOTION for Extension of Time to File response and cross motion by Donald Zarda. (Antollino, Gregory) (Entered: 03/08/2013)

03/13/2013

116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2/22/2013, before Judge Joseph F. Bianco. Transcriber Aria Services, Inc., Telephone number 845260-1377. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/3/2013. Redacted Transcript Deadline set for 4/15/2013. Release of Transcript Restriction set for 6/11/2013. (Russo, Eric) (Entered: 03/13/2013)

03/14/2013

ORDER granting 115 Motion for Extension of Time to File. The Court has received counsel for plaintiff's letter dated March 8, 2013 requesting, on consent, a one-week extension of time to ﬁle a response and cross motion for summary judgment. IT IS HEREBY ORDERED that plaintiff's request is granted. Response and cross motion to be ﬁled by April 3, 2013; Reply and opposition to be ﬁled by April 17, 2013; Reply to be ﬁled by May 8, 2013. Oral argument remains on Wednesday, May 29, 2013 at 4:30 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/14/2013. (Samplin, Ilissa) (Entered: 03/14/2013)

03/26/2013

117 Second MOTION for Extension of Time to File SJ/Response to SJ by Donald Zarda. (Antollino, Gregory) (Entered: 03/26/2013)

03/26/2013

ORDER granting 117 Motion for Extension of Time to File. The Court has received counsel for plaintiff's letter dated March 26, 2013 requesting a one week extension of time to ﬁle his response and cross motion for summary judgment. IT IS HEREBY

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04/03/2013 04/04/2013 04/04/2013 04/05/2013
04/07/2013 04/08/2013 04/08/2013 04/08/2013 04/08/2013
04/08/2013 04/08/2013

Eastern District of New York - LIVE Database V6.2.1
ORDERED that counsel for plaintiff's request is granted. IT IS FURTHER ORDERED that the parties shall abide by the following modiﬁed brieﬁng schedule: response and cross motion to be ﬁled by April 10, 2013; reply and opposition to be ﬁled by April 24, 2010; reply to be ﬁled by May 15, 2013. Oral argument remains on Wednesday, May 29, 2013 at 4:30 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/26/2013. (Samplin, Ilissa) (Entered: 03/26/2013)
119 MOTION for Leave to Electronically File Document under Seal documents faxed on 4/3/2013, MOTION to Seal Document by Donald Zarda. (Antollino, Gregory) (Entered: 04/03/2013)
120 RESPONSE in Opposition re 119 MOTION for Leave to Electronically File Document under Seal documents faxed on 4/3/2013 MOTION to Seal Document ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/04/2013)
121 REPLY in Support re 119 MOTION for Leave to Electronically File Document under Seal documents faxed on 4/3/2013 MOTION to Seal Document ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 04/04/2013)
ORDER denying 119 Motion for Leave to Electronically File Document under Seal. The Court has received counsel for plaintiff's motion to ﬁle documents under seal. Having reviewed the documents, the Court sees no basis for them to be ﬁled under seal, other than the social security number referenced in the documents. IT IS HEREBY ORDERED that plaintiff's counsel shall electronically ﬁle a redacted version of the documents (with only the social security numbers redacted). SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/5/2013. (Samplin, Ilissa) (Entered: 04/05/2013)
122 RULE 56.1 STATEMENT in opposition to defendants ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 04/08/2013)
123 Third MOTION for Extension of Time to File motion/cross motion for one day because of ecf failure and electrical outage by Donald Zarda. (Attachments: # 1 Exhibit) (Antollino, Gregory) (Entered: 04/08/2013)
ORDER granting 123 Motion for Extension of Time to File. The Court has received counsel for plaintiff's letter dated April 8, 2013 requesting a one day extension to ﬁle opposition papers. IT IS HEREBY ORDERED that counsel for plaintiff's request is granted. Plaintiff shall ﬁle his opposition papers by April 9, 2013. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/8/2013. (Samplin, Ilissa) (Entered: 04/08/2013)
124 Letter regarding continuing problems with ecf and my solution by Donald Zarda (Antollino, Gregory) (Entered: 04/08/2013)
125 AFFIDAVIT/DECLARATION in Opposition re 104 Letter MOTION for pre motion conference regarding Summary Judgment IN ACTUAL OPPOSITION TO SUMMARY JUDGMENT AS A RESULT OF ECF PROBLEMS ﬁled by Donald Zarda. (Attachments: # 1 Exhibit AA Part 1, # 2 Exhibit AA Part 2, # 3 Exhibit AA Part 3, # 4 Exhibit AA Part 4, # 5 Exhibit AA Part 5, # 6 Exhibit BB, # 7 Exhibit CC, # 8 Exhibit DD, # 9 Exhibit EE, # 10 Exhibit FF) (Antollino, Gregory) (Entered: 04/08/2013)
126 AFFIDAVIT/DECLARATION in Opposition re 104 Letter MOTION for pre motion conference regarding Summary Judgment IN ACTUAL OPPOSITION TO SUMMARY JUDGMENT AS A RESULT OF ECF PROBLEMS ﬁled by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F&G) (Antollino, Gregory) (Entered: 04/08/2013)
127 RESPONSE in Opposition re 104 Letter MOTION for pre motion conference regarding Summary Judgment ZARDA DECLARATION CONCERNING WAGES ﬁled by Donald

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Zarda. (Attachments: # 1 Exhibit A,B,C,D) (Antollino, Gregory) (Entered: 04/08/2013)

04/08/2013

128 AFFIDAVIT/DECLARATION in Opposition re 104 Letter MOTION for pre motion conference regarding Summary Judgment BY GREGORY ANTOLLINO IN ACTUAL OPPOSITION TO SUMMARY JUDGMENT AS A RESULT OF ECF PROBLEMS ﬁled by Donald Zarda. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S,T,U,V, # 20 Exhibit W, # 21 X,Y,Z) (Antollino, Gregory) (Entered: 04/08/2013)

04/09/2013

129 RULE 56.1 STATEMENT In support of plainitff's motion and in further opposition under Rule 56.1(b) to defendant's motion ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 04/09/2013)

04/09/2013 130 Letter regarding 2 errata in plaintiff's counter 56.1 statement in opposition to defendant's motion by Donald Zarda (Antollino, Gregory) (Entered: 04/09/2013)

04/09/2013 131 MEMORANDUM in Support and in opposition to defenendants' ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 04/10/2013)

04/10/2013 132 MOTION for Partial Summary Judgment by Donald Zarda. Responses due by 4/24/2013 (Antollino, Gregory) (Entered: 04/10/2013)

04/10/2013 133 Letter summarizing materials submitted for and against summary judgment by Donald Zarda (Antollino, Gregory) (Entered: 04/10/2013)

04/12/2013 134 Letter concerning 3 errata in memo of law by Donald Zarda (Antollino, Gregory) (Entered: 04/12/2013)

04/15/2013 135 Letter MOTION for Extension of Time to File Defendants' Reply and Opposition by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/15/2013)

04/15/2013

ORDER granting 135 Motion for Extension of Time to File. The Court has received counsel for defendants' letter dated April 15, 2013 requesting, on consent, an extension of the brieﬁng schedule for the motions for summary judgment. IT IS HEREBY ORDERED that defendants' shall respond no later than May 3, 2013 and plaintiff shall reply no later than May 24, 2013. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/15/2013. (Samplin, Ilissa) (Entered: 04/15/2013)

05/03/2013 136 RULE 56.1 STATEMENT re 132 MOTION for Partial Summary Judgment in Opposition ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 05/03/2013)

05/03/2013

137 MEMORANDUM in Opposition re 132 MOTION for Partial Summary Judgment , REPLY in Support of Defendants' Motion for Summary Judgment ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 05/03/2013)

05/19/2013

138 REPLY to Response to Motion re 104 Letter MOTION for pre motion conference regarding Summary Judgment, 132 MOTION for Partial Summary Judgment , REPLY in Support re 132 MOTION for Partial Summary Judgment ﬁled by Donald Zarda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Antollino, Gregory) (Entered: 05/19/2013)

05/20/2013 139 Letter MOTION to Strike a portion of Plaintiff's Reply Memorandum by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 05/20/2013)

05/20/2013

140 RESPONSE in Opposition re 139 Letter MOTION to Strike a portion of Plaintiff's Reply Memorandum or for other relief ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 05/20/2013)

05/28/2013

SCHEDULING ORDER: IT IS HEREBY ORDERED that, due to a conﬂict in

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Chambers, oral argument is rescheduled for Tuesday, June 4, 2013 at 3:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/28/2013. (Samplin, Ilissa) (Entered: 05/28/2013)

05/28/2013 141 First MOTION to Adjourn Conference of June 4 to June 6 by Donald Zarda. (Antollino, Gregory) (Entered: 05/28/2013)

05/28/2013

ORDER granting 141 Motion to Adjourn Conference. The Court has received counsel for plaintiff's letter dated May 28, 2013, requesting that oral argument be rescheduled for June 6, 2013. IT IS HEREBY ORDERED that oral argument will now take place on Thursday, June 6, 2013 at 11:30 a.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/28/2013. (Samplin, Ilissa) (Entered: 05/28/2013)

06/06/2013

142 Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 6/6/2013; decision reserved(Tape #ftr 11:51 - 12:50.) (Bollbach, Jean) (Entered: 06/07/2013)

06/15/2013 143 Letter re good faith basis for $75000 in controversy in the contingency the court dismisses the Title VII claim by Donald Zarda (Antollino, Gregory) (Entered: 06/15/2013)

07/28/2013 144 NOTICE of Change of address by Gregory S. Antollino (Antollino, Gregory) (Entered: 07/28/2013)

03/07/2014

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Friday, March 28, 2014, at 3:00 p.m. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/7/2014. (Chipev, George) (Entered: 03/07/2014)

03/28/2014

145 ORDER denying 132 Motion for Partial Summary Judgment; denying 139 Motion to Strike; granting in part and denying in part 109 Memorandum in Support [Defendants' Motion for Summary Judgment]. For the reasons set forth on the record on March 28, 2014, IT IS HEREBY ORDERED that defendants' motion for summary judgment (see D.E. 109) is granted in part and denied in part, that plaintiff's motion for partial summary judgment is denied in its entirety, and that defendants' motion to strike is denied. See Order for additional details. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/28/2014. (Chipev, George) (Entered: 03/28/2014)

03/28/2014 146 AMENDED COMPLAINT (second) against All Defendants, ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 03/28/2014)

03/28/2014 147 Letter to Judge Bianco regarding ﬁled Second Amended Complaint and discovery in ﬁrst amended complaint by Donald Zarda (Antollino, Gregory) (Entered: 03/28/2014)

03/28/2014

149 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 3/28/2014; decision made on the record. See court order (Tape #ftr 3:07 - 3:33.) (Bollbach, Jean) (Entered: 03/31/2014)

03/30/2014 148 NOTICE of Appearance by Richard J. Cardinale on behalf of Donald Zarda (aty to be noticed) (Cardinale, Richard) (Entered: 03/30/2014)

04/01/2014

150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/28/2014, before Judge Joseph F. Bianco. Transcriber Tracy Gribben's Transcription Service, Telephone number 732- 263-0044. Email address: TGribben@transcription.com. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/22/2014. Redacted Transcript Deadline set for 5/2/2014. Release of Transcript Restriction set for 6/30/2014. (Cox, Dwayne) (Entered: 04/01/2014)

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04/03/2014 04/03/2014 04/04/2014
04/09/2014 04/09/2014 04/09/2014 04/15/2014 04/15/2014 04/29/2014 04/30/2014
05/08/2014
05/08/2014

Eastern District of New York - LIVE Database V6.2.1
151 Letter MOTION for pre motion conference (anticipated motion to strike and dismiss) by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/03/2014)
152 RESPONSE in Opposition re 151 Letter MOTION for pre motion conference (anticipated motion to strike and dismiss) ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 04/03/2014)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Wednesday, April 9, 2014, at 4:00 p.m. to address defendants' request to move to strike and dismiss. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/4/2014. (Chipev, George) (Entered: 04/04/2014)
ORDER. For the reasons set forth on the record during the telephone conference on April 9, 2014, the Court strikes plaintiff's second amended complaint. The request for a premotion conference is terminated as moot. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/9/2014. (Chipev, George) (Entered: 04/09/2014)
ORDER terminating 151 Motion for Pre Motion Conference. Ordered by Judge Joseph F. Bianco on 4/9/2014. (Chipev, George) (Entered: 04/09/2014)
153 Minute Entry for proceedings held before Judge Joseph F. Bianco:Status telephone Conference held on 4/9/2014 (Tape #ftr 4:40 - 4:44.) (Bollbach, Jean) (Entered: 04/10/2014)
154 Notice of MOTION to Dismiss for Lack of Jurisdiction (Diversity) by Altitude Express, Inc., Ray Maynard. Responses due by 4/25/2014 (Attachments: # 1 Declaration Declaration of Saul D. Zabell, # 2 Exhibit Exhibit 1, # 3 Memorandum in Support Memorandum of Law in Support) (Zabell, Saul) (Entered: 04/15/2014)
155 RESPONSE in Opposition re 154 Notice of MOTION to Dismiss for Lack of Jurisdiction (Diversity) ﬁled by Donald Zarda. (Attachments: # 1 2013 Letter) (Antollino, Gregory) (Entered: 04/15/2014)
156 REPLY in Support re 154 Notice of MOTION to Dismiss for Lack of Jurisdiction (Diversity) ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/29/2014)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Thursday, May 8, 2014, at 4:00 p.m. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712-5670. During the conference, the Court intends to issue an oral ruling on the pending motion to dismiss. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/30/2014. (Chipev, George) (Entered: 04/30/2014)
157 MINUTE ENTRY/Order for proceedings held before Judge Joseph F. Bianco: Civil Cause for Telephone Conference held on 5/8/14 at 4:21 p.m. FTR: 4:21-4:29. Case called. Counsel for all sides present. Conference held. Motion to dismiss based on amount in controversy denied. Pretrial order due 6/9/14.(Tape #4:21-4:29.) Terminating 154 Motion to Dismiss for Lack of Jurisdiction as denied. (Tape #4:21-4:29.) (Coleman, Laurie) (Entered: 05/09/2014)
158 ORDER re 154 Notice of MOTION to Dismiss for Lack of Jurisdiction (Diversity) ﬁled by Ray Maynard, Altitude Express, Inc. For the reasons set forth on the record during the telephone conference on May 8, 2014,defendants' motion to dismiss is denied.. Ordered by Judge Joseph F. Bianco on 5/8/2014. (Bollbach, Jean) (Entered: 05/13/2014)

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06/05/2014 06/05/2014 06/06/2014
06/06/2014 06/09/2014 06/09/2014
06/09/2014 06/10/2014
06/10/2014 06/17/2014 06/18/2014 06/19/2014

Eastern District of New York - LIVE Database V6.2.1
159 MOTION for More Deﬁnite Statement as to witness knowledge AND their contact information or to eliminate 50 of the 60 names on defendants' witness list by Donald Zarda. (Antollino, Gregory) (Entered: 06/05/2014)
160 RESPONSE in Opposition re 159 MOTION for More Deﬁnite Statement as to witness knowledge AND their contact information or to eliminate 50 of the 60 names on defendants' witness list ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 06/05/2014)
SCHEDULING ORDER: By letter dated June 5, 2014, plaintiff requests an extension of time to ﬁle the pretrial order because of issues with defendants' witness list. IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Tuesday, June 10, 2014, at 4:30 p.m. to address this issue. At that time, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712-5670. The Court shall set a new date for ﬁling the pretrial order during the conference. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/6/2014. (Chipev, George) (Entered: 06/06/2014)
161 REPLY in Support re 159 MOTION for More Deﬁnite Statement as to witness knowledge AND their contact information or to eliminate 50 of the 60 names on defendants' witness list ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 06/06/2014)
162 MOTION for Extension of Time to File JPTO until the court rules on the previous motion by Donald Zarda. (Antollino, Gregory) (Entered: 06/09/2014)
ORDER ﬁnding as moot 162 Motion for Extension of Time to File. As noted in the Court's scheduling order dated June 6, 2014, the Court shall set a new date to ﬁle the pretrial order pending the telephone conference scheduled for June 10, 2014. Accordingly, plaintiff's motion for an extension of time is denied as moot. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/9/2014. (Chipev, George) (Entered: 06/09/2014)
163 Letter explaining confusion as to previous motion by Donald Zarda (Antollino, Gregory) (Entered: 06/09/2014)
ORDER terminating 159 Motion for More Deﬁnite Statement. As set forth on the record during the telephone conference on June 10, 2014, IT IS HEREBY ORDERED that the pretrial order, which should include information about the proposed defense witnesses, shall be due by June 17, 2014. IT IS FURTHER ORDERED that plaintiff submit a letter to the Court by August 5, 2014, detailing any disputed objections to the designations. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/10/2014. (Chipev, George) (Entered: 06/10/2014)
164 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 6/10/2014; pretrial order due by 6/7/14; letter to Mr. Antollino by 7/7/14; letter to be submitted to the court by 8/5/14 (Tape #ftr 4:41 - 5:01.) (Bollbach, Jean) (Entered: 06/11/2014)
165 Letter regarding Joint Pre-Trial Order by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Proposed Order Partially Executed Pre-Trial Order) (Zabell, Saul) (Entered: 06/17/2014)
166 Letter objecting to unilateral ﬁling of JPTO simply because defendants didn't like what I put truthfully in my portion of the document by Donald Zarda (Antollino, Gregory) (Entered: 06/18/2014)
167 Letter regarding plaintiff's 6-17-14 letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 06/19/2014)

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3/28/2019
06/19/2014
06/19/2014
06/20/2014 07/15/2014
07/16/2014 07/16/2014 10/06/2014 10/07/2014 11/19/2014
11/19/2014 11/21/2014 12/01/2014 12/02/2014
12/03/2014

Eastern District of New York - LIVE Database V6.2.1
ORDER. IT IS HEREBY ORDERED that counsel for plaintiff may submit a pretrial order signed by him including the disputed statement. No conference is necessary at this time. Ordered by Judge Joseph F. Bianco on 6/19/2014. (Chipev, George) (Entered: 06/19/2014)
168 Letter documenting Mr. Zabell's second homophobic remark toward me in the recent letter to the court, his history of boorish behavior towards me, and insisting that I be treated civilly in this litigation in the future. by Donald Zarda (Antollino, Gregory) (Entered: 06/19/2014)
169 Proposed Pretrial Order by Donald Zarda (Antollino, Gregory) (Entered: 06/20/2014)
170 Fully Briefed MOTION in Limine to overrule defendants' objections to deposition designations by Donald Zarda. (Attachments: # 1 Declaration, # 2 Exhibit 1 Zabell Letter, # 3 Exhibit 2 Antollino Response, # 4 Exhibit 3 Google Map, # 5 Exhibit 4 Maynard Deposition Designations, # 6 Exhibit 5 Cheat Sheet, # 7 Exhibit 6 Callanan Designations, # 8 Exhibit 7 Callanan Letter) (Antollino, Gregory) (Entered: 07/15/2014)
171 RESPONSE in Opposition re 170 Fully Briefed MOTION in Limine to overrule defendants' objections to deposition designations ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 07/16/2014)
172 REPLY in Opposition re 171 Response in Opposition to Motion objecting to another round of the same motion ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 07/16/2014)
173 SUGGESTION OF DEATH Upon the Record as to Donald Zarda (Plaintiff) by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 10/06/2014)
174 Letter regarding the death of Don Zarda by Donald Zarda (Antollino, Gregory) (Entered: 10/07/2014)
175 MOTION to Substitute Party (estate for deceased plaintiff), MOTION to Amend/Correct/Supplement 28 Amended Complaint (caption only) by Donald Zarda. (Attachments: # 1 Declaration of Gregory Antollino, # 2 Exhibit Probate Documents, # 3 Proposed Order) (Antollino, Gregory) (Entered: 11/19/2014)
176 MEMORANDUM in Support re 175 MOTION to Substitute Party (estate for deceased plaintiff) MOTION to Amend/Correct/Supplement 28 Amended Complaint (caption only) ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 11/19/2014)
177 Letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 11/21/2014)
178 RESPONSE to Motion re 175 MOTION to Substitute Party (estate for deceased plaintiff) MOTION to Amend/Correct/Supplement 28 Amended Complaint (caption only) ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 12/01/2014)
179 REPLY in Support re 175 MOTION to Substitute Party (estate for deceased plaintiff) MOTION to Amend/Correct/Supplement 28 Amended Complaint (caption only) in response to points raised in Mr. Zabell's "consent" letter ﬁled by Donald Zarda. (Antollino, Gregory) (Entered: 12/02/2014)
180 ORDER granting 175 Motion to Substitute Party. Donald Zarda terminated; granting 175 Motion to Amend Caption. Accordingly, IT IS HEREBY ORDERED that the motion for substitution of the plaintiff's estate for the deceased plaintiff is granted. The Court does not believe an in-person conference is necessary at this time. A telephone conference will be scheduled to addresspotential trial dates and a schedule for in limine motions.. Ordered by Judge Joseph F. Bianco on 12/3/2014. (Bollbach, Jean) (Entered: 12/04/2014)

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3/28/2019
01/20/2015 01/21/2015
02/02/2015 02/05/2015 02/05/2015
02/11/2015 02/12/2015 02/12/2015
02/17/2015 02/17/2015 02/28/2015 03/02/2015 03/02/2015

Eastern District of New York - LIVE Database V6.2.1
181 MOTION for pre motion conference and/or pre-trial conference by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 01/20/2015)
ORDER granting 181 Motion for Pre Motion Conference. By letter dated January 20, 2015, counsel for the plaintiff requests a telephone conference to address the status the case and outstanding motions, in light of the death of Mr. Zarda. IT IS HEREBY ORDERED that a telephone conference is scheduled for Monday, February 2, 2015 at 4:30 P.M. At that time, plaintiff's counsel shall initiate the call, and, once all parties are on the line, shall telephone Chambers at 631-712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/21/2015. (Street, Caitlin) (Entered: 01/21/2015)
SCHEDULING ORDER: Telephone Status Conference set for February 2, 20015 is rescheduled to February 6, 2015 at 4:15 p.m. before Judge Joseph F. Bianco. Ordered by Judge Joseph F. Bianco on 2/2/2015. (Savona, Michele) (Entered: 02/02/2015)
182 Consent MOTION to Adjourn Conference by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/05/2015)
ORDER granting 182 Motion to Adjourn Conference. By letter dated February 5, 2015, counsel for defendants requests on consent an adjournment of the telephone conference scheduled for Friday, February 6. IT IS HEREBY ORDERED that the request is granted. The telephone conference is adjourned to Wednesday, February 11 at 2:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/5/2015. (Street, Caitlin) (Entered: 02/05/2015)
SCHEDULING ORDER: Due to a conﬂict in the Court's calendar, IT IS HEREBY ORDERED that the telephone conference scheduled for today is adjourned to Thursday, February 12 at 2:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/11/2015. (Street, Caitlin) (Entered: 02/11/2015)
183 MOTION to Adjourn Conference (telephonic) scheduled for February 12, 2015 at 2:30 pm by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 02/12/2015)
ORDER granting 183 Motion to Adjourn Conference. IT IS HEREBY ORDERED that defendants counsel's request to adjourn the telephone conference scheduled for today is granted. IT IS FURTHER ORDERED that the conference is rescheduled for Tuesday, February 17, 2015 at 2:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/12/2015. (Street, Caitlin) (Entered: 02/12/2015)
Motions terminated: 170 Fully Briefed MOTION in Limine to overrule defendants' objections to deposition designations ﬁled by Melissa Zarda. Ordered by Judge Joseph F. Bianco on 2/17/2015. (Street, Caitlin) (Entered: 02/17/2015)
184 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 2/17/2015 - Letter to be submitted to the court by 3/6/15. Objections to be ﬁled by 3/20/15. Letter reply by 4/3/15. (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 02/18/2015)
185 MOTION for Extension of Time to File deposition designations and to note another issue by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 02/28/2015)
186 RESPONSE in Opposition re 185 MOTION for Extension of Time to File deposition designations and to note another issue ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/02/2015)
187 REPLY in Support re 185 MOTION for Extension of Time to File deposition designations and to note another issue ﬁled by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 03/02/2015)

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03/03/2015

Eastern District of New York - LIVE Database V6.2.1
188 REPLY in Opposition re 185 MOTION for Extension of Time to File deposition designations and to note another issue ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 03/03/2015)

03/04/2015 189 Letter re availability for either July 6 or July 23 by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 03/04/2015)

03/05/2015

190 MOTION in Limine regarding deceased plaintiff's pretrial testimony by William Allen Moore, Jr, Melissa Zarda. (Attachments: # 1 Deposition of Donald Zarda with trial designations in highlighted yellow) (Antollino, Gregory) (Entered: 03/05/2015)

03/18/2015

Case Reassigned to Magistrate Judge Anne Y. Shields. Magistrate Judge Gary R. Brown no longer assigned to the case. (Mahoney, Brenna) (Entered: 03/18/2015)

03/18/2015

ORDER ﬁnding as moot 185 Motion for Extension of Time to File. Given that counsel for plaintiff ﬁled his letter within the deadline, IT IS HEREBY ORDERED the Court terminates his motion for an extension of time to ﬁle as moot. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/18/2015. (Street, Caitlin) (Entered: 03/18/2015)

03/18/2015

SCHEDULING ORDER: IT IS HEREBY ORDERED that a telephone conference is scheduled for Monday April 13, 2015 at 2:15 p.m. At the time of the conference, plaintiff's counsel shall initiate the call, and, once all parties are on the line, shall telephone Chambers at 631-712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/18/2015. (Street, Caitlin) (Entered: 03/18/2015)

03/19/2015

191 RESPONSE in Opposition re 190 MOTION in Limine regarding deceased plaintiff's pretrial testimony ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Zabell, Saul) (Entered: 03/19/2015)

03/23/2015

SCHEDULING ORDER: Due to a conﬂict in the Court's calendar, IT IS HEREBY ORDERED that the telephone conference scheduled for Monday, April 13 at 2:15 PM is rescheduled to 12:00 PM on the same day. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/23/2015. (Street, Caitlin) (Entered: 03/23/2015)

03/23/2015 198 ORDER IN RE CASES RE-ASSIGNED. Ordered by Magistrate Judge Anne Y. Shields on 3/23/2015. (Attachments: # 1 AYS Rules) (Torres, Jasmine) (Entered: 04/16/2015)

03/28/2015 192 REPLY in Support re 190 MOTION in Limine regarding deceased plaintiff's pretrial testimony ﬁled by All Plaintiffs. (Antollino, Gregory) (Entered: 03/28/2015)

03/28/2015

193 Second MOTION in Limine regarding defense deposition designations of Don Zarda's deposition by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 03/28/2015)

03/30/2015 194 MOTION to Adjourn Conference of April 13 by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 03/30/2015)

04/02/2015

ORDER granting 194 Motion to Adjourn Conference. IT IS HEREBY ORDERED that the request is granted and the telephone conference is now scheduled for Monday, April 27 at 4:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/2/2015. (Street, Caitlin) (Entered: 04/02/2015)

04/15/2015 195 Letter by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Exhibit A) (Zabell, Saul) (Entered: 04/15/2015)

04/15/2015 196 Letter re July 6 is not a good date for anyone now by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 04/15/2015)

04/15/2015 197 Letter concerning Mr. Zabell's misrepresentation to Judge Wexler concerning this case by William Allen Moore, Jr, Melissa Zarda (Attachments: # 1 Letter from Zabell to Wexler)

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04/21/2015 04/24/2015 04/27/2015 04/30/2015 06/02/2015 06/08/2015
06/12/2015
07/21/2015 07/24/2015 07/24/2015 07/27/2015
08/06/2015 08/07/2015

Eastern District of New York - LIVE Database V6.2.1
(Antollino, Gregory) (Entered: 04/15/2015)
199 Letter from March 28 with corrections by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 04/21/2015)
200 Third MOTION in Limine regarding an additional exhibit and proposed demonstrative demonstration by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 04/24/2015)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the telephone conference scheduled for today is adjourned to Thursday, April 30 at 2:30 PM. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/27/2015. (Street, Caitlin) (Entered: 04/27/2015)
201 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 4/30/2015, ( Trial set for 7/27/2015 09:30 AM in Courtroom 1040 before Judge Joseph F. Bianco.) (Tape #ftr 2:42 - 3:02.) (Bollbach, Jean) (Entered: 04/30/2015)
202 Letter requesting adjournment by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 06/02/2015)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference Friday, June 12, 2015 at 4:00 p.m. to discuss defendants' request for an adjournment of the trial. At that time, counsel for defendants shall initiate the call and, once all the parties are on the line, contact Chambers at 631-712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/8/2015. (Street, Caitlin) (Entered: 06/08/2015)
203 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 6/12/2015, Defendant will provide letter from doctor. Trial set for 7/27/2015 is adjourned to 10/13/15. ( Jury Selection set for 10/13/2015 09:30 AM in Courtroom 1040 before Judge Joseph F. Bianco.) (Tape #ftr 4:05 - 4:15.) (Bollbach, Jean) (Entered: 06/15/2015)
206 MOTION for pre motion conference re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, to reconsider based on new authority to which the court must grant deference by William Allen Moore, Jr, Melissa Zarda. (Attachments: # 1 Exhibit A Anonymous v. Foxx) (Antollino, Gregory) (Entered: 07/21/2015)
207 RESPONSE in Opposition re 206 MOTION for pre motion conference re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, to reconsider based on new authority to which the court must grant deference ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 07/24/2015)
208 REPLY in Support of pre-motion conference ﬁled by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 07/24/2015)
ORDER granting 206 Motion for Pre Motion Conference. IT IS HEREBY ORDERED that a telephone pre-motion conference is scheduled for Thursday, August 6 at 12:15 p.m. At that time, plaintiff's counsel shall initiate the call, and, once all parties are on the line, shall telephone Chambers at 631-712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/27/2015. (Street, Caitlin) (Entered: 07/27/2015)
209 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 8/6/2015; motion for reconsideration to be ﬁled (Tape #ftr 12:27 - 12:37.) (Bollbach, Jean) (Entered: 08/06/2015)
210 MOTION for Reconsideration re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 08/07/2015)

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08/07/2015 08/21/2015
08/24/2015 09/22/2015 09/23/2015 09/24/2015
09/25/2015 09/25/2015 09/25/2015
09/29/2015 10/01/2015 10/02/2015 10/02/2015 10/05/2015 10/06/2015

Eastern District of New York - LIVE Database V6.2.1
211 MEMORANDUM in Support re 210 MOTION for Reconsideration re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, ﬁled by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 08/07/2015)
212 RESPONSE in Opposition re 210 MOTION for Reconsideration re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, ﬁled by Altitude Express, Inc., Ray Maynard. (Attachments: # 1 Declaration of SDZ, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E) (Zabell, Saul) (Entered: 08/21/2015)
213 REPLY to Response to Motion re 210 MOTION for Reconsideration re 145 Order on Motion for Partial Summary Judgment, Order on Motion to Strike,,,, ﬁled by All Plaintiffs. (Cardinale, Richard) (Entered: 08/24/2015)
214 Letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 09/22/2015)
215 Motion to Appear by Telephone on Friday if possible to ascertain more information about the defendant's condition by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 09/23/2015)
ORDER granting 215 Motion to Appear by Telephone. IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Monday, September 28, 2015 at 11:30 a.m. At the time of the conference, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/24/2015. (Street, Caitlin) (Entered: 09/24/2015)
216 Letter by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 09/25/2015)
217 Letter regarding withdraw of motion for conference unless otherwise requested by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 09/25/2015)
SCHEDULING ORDER: In light of the parties' letters ﬁled today, IT IS HEREBY ORDERED that the telephone conference scheduled for Monday is cancelled. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/25/2015. (Street, Caitlin) (Entered: 09/25/2015)
218 Proposed Voir Dire by William Allen Moore, Jr, Melissa Zarda, TRIAL BRIEF regarding attorney voir dire by William Allen Moore, Jr, Melissa Zarda (Attachments: # 1 Questionnaire/questions for the court) (Antollino, Gregory) (Entered: 09/29/2015)
219 Proposed Jury Instructions by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/01/2015)
220 Letter requesting a Certiﬁcate of Engagement by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Proposed Certiﬁcate of Engagement) (Zabell, Saul) (Entered: 10/02/2015)
222 ORDER : certiﬁcate of engagement ﬁled for Mr. Zabell for jury selection and trial commencing 10/13/15. Ordered by Judge Joseph F. Bianco on 10/2/2015. (Bollbach, Jean) (Entered: 10/06/2015)
221 MOTION for Extension of Time to File document binder by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 10/05/2015)
ORDER granting 221 Motion for Extension of Time to File The Court has received Plaintiff's letter dated October 5, 2015. IT IS HEREBY ORDERED that Plaintiff's request for an extension to provide an exhibit binder on October 7, 2015 is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/6/2015. (Shea, Zoe) (Entered: 10/06/2015)

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223 TRIAL BRIEF by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Declaration of Saul D. Zabell, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Zabell, Saul) (Entered: 10/06/2015)

10/06/2015 224 Proposed Jury Instructions by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 10/06/2015)

10/06/2015

225 Letter with Defendants' Proposed Trial Exhibits by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Exhibit List, # 2 Exhibit A(1), # 3 Exhibit A(2), # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y) (Zabell, Saul) (Entered: 10/06/2015)

10/06/2015

SCHEDULING ORDER: IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Thursday, October 8, 2015 at 12:45 p.m. At the time of the conference, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712 5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/6/2015. (Shea, Zoe) (Entered: 10/06/2015)

10/07/2015

226 Letter by Altitude Express, Inc., Ray Maynard (Attachments: # 1 Trial Subpoena Kengle, # 2 Afﬁdavit of Service - Kengle, # 3 Trial Subpoena - Orellana, # 4 Afﬁdavit of Service - Orellana) (Zabell, Saul) (Entered: 10/07/2015)

10/07/2015 227 Letter regarding premature subpoenas on Kengle and Orellana by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/07/2015)

10/08/2015 228 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 10/8/2015 (Tape #ftr 1:44 - 2:01.) (Bollbach, Jean) (Entered: 10/08/2015)

10/08/2015 229 Proposed Jury Instructions by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/08/2015)

10/10/2015

230 Letter requesting attorney voir dire and speciﬁc question(s) regarding sexual orientation generally and as stated in the workplace by William Allen Moore, Jr, Melissa Zarda (Attachments: # 1 shortened voir dire, # 2 page from 10/4/12 conference) (Antollino, Gregory) (Entered: 10/10/2015)

10/13/2015

231 Minute Entry for proceedings held before Judge Joseph F. Bianco: Jury Selection held and completed on 10/13/2015, Voir Dire held on 10/13/2015, Voir Dire Completed; Jury Trial held on 10/13/2015, witnesses sworn, exhibits entered; plaintiff and deft opens ( Jury Trial set for 10/14/2015 09:30 AM in Courtroom 1020 before Judge Joseph F. Bianco.) (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 10/14/2015)

10/14/2015

232 Minute Entry for proceedings held before Judge Joseph F. Bianco:Jury Trial held on 10/14/2015, witnesses sworn and exhibits entered( Jury Trial set for 10/15/2015 09:30 AM in Courtroom 1020 before Judge Joseph F. Bianco.) (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 10/15/2015)

10/15/2015

236 Minute Entry for proceedings held before Judge Joseph F. Bianco:Jury Trial held on 10/15/2015, witnesses sworn, exhibits entered ( Jury Trial set for 10/19/2015 09:30 AM in Courtroom 1020 before Judge Joseph F. Bianco.) (Court Reporter Owen Wicker.) (Bollbach, Jean) (Entered: 10/19/2015)

10/16/2015

233 MOTION in Limine to admit portions of plaintiff's declaration as exceptions to the hersay rule, MOTION for Sanctions in precluding three or at least one for failure to adequately identify witnesses before trial by William Allen Moore, Jr, Melissa Zarda. (Attachments: # 1 Exhibit 1 Plaintiff's annotated declaration, # 2 Exhibit Defendant's ﬁnal

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amended initial disclosures, # 3 Exhibit 3 Defendant's produced list of names and addresses of plaintiff's co-workers) (Antollino, Gregory) (Entered: 10/16/2015)

10/17/2015 234 Proposed Findings of Fact by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/17/2015)

10/19/2015

235 RESPONSE in Opposition re 233 MOTION in Limine to admit portions of plaintiff's declaration as exceptions to the hersay rule MOTION for Sanctions in precluding three or at least one for failure to adequately identify witnesses before trial ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 10/19/2015)

10/19/2015

237 Minute Entry for proceedings held before Judge Joseph F. Bianco:Jury Trial held on 10/19/2015, witnesses sworn, exhibits entered ( Jury Trial set for 10/20/2015 09:30 AM in Courtroom 1020 before Judge Joseph F. Bianco.) (Court Reporter Ellen Combs and Owen Wicker.) (Bollbach, Jean) (Entered: 10/20/2015)

10/20/2015

238 Minute Entry for proceedings held before Judge Joseph F. Bianco:Jury Trial held on 10/20/2015, witnesses sworn, exhibits entered; plaintiff rests, deft rests( Jury Trial set for 10/21/2015 09:30 PM in Courtroom 1020 before Judge Joseph F. Bianco.) (Court Reporter Ellen Combs and Owen Wicker.) (Bollbach, Jean) (Entered: 10/20/2015)

10/20/2015 239 Letter regarding one additional jury instruction by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/20/2015)

10/20/2015 240 Proposed Jury Instructions by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 10/20/2015)

10/20/2015 241 Court's Proposed Jury Instructions (Shea, Zoe) (Entered: 10/20/2015)

10/20/2015 242 Court's Proposed Verdict Sheet (Shea, Zoe) (Entered: 10/20/2015)

10/21/2015

243 Minute Entry for proceedings held before Judge Joseph F. Bianco: jury trial held; plaintiff summation; deft summation, plaintiff rebuttal, jury trial ends, jury charged; deliberations begin; defts verdict.Jury Trial completed on 10/21/2015 (Court Reporter Ellen Combs and Owen Wicker.) (Bollbach, Jean) (Entered: 10/22/2015)

10/21/2015 244 Order of Sustenance/Lodging/Transportation - lunch 8 jurors. Ordered by Judge Joseph F. Bianco on 10/21/2015. (Bollbach, Jean) (Entered: 10/26/2015)

10/21/2015 245 JURY TRIAL COURT EXHIBITS 1-2, A-F (3 is verdict sheet which is separate) (Bollbach, Jean) (Entered: 10/26/2015)

10/21/2015 246 JURY VERDICT SHEET (Bollbach, Jean) (Entered: 10/26/2015)

10/28/2015

247 JUDGMENT : IT IS ORDERED AND ADJUDGED that the plaintiff, estate of Donald Zarda, take nothing of the defendants, Altitude Express Inc. and Raymond Maynard, and that the action be dismissed on the merits. (Bollbach, Jean)cm (Entered: 10/29/2015)

11/17/2015

248 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/20/15, before Judge Joseph F. Bianco. Court Reporter/Transcriber E Combs. Email address: ellencombs@hotmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/8/2015. Redacted Transcript Deadline set for 12/18/2015. Release of Transcript Restriction set for 2/15/2016. (Combs, Ellen) (Entered: 11/17/2015)

11/17/2015

249 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/21/15, before Judge Joseph F. Bianco. Court Reporter/Transcriber E Combs. Email address:

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ellencombs@hotmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/8/2015. Redacted Transcript Deadline set for 12/18/2015. Release of Transcript Restriction set for 2/15/2016. (Combs, Ellen) (Entered: 11/17/2015)

11/17/2015

250 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/19/15, before Judge Joseph F. Bianco. Court Reporter/Transcriber E Combs. Email address: ellencombs@hotmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/8/2015. Redacted Transcript Deadline set for 12/18/2015. Release of Transcript Restriction set for 2/15/2016. (Combs, Ellen) (Entered: 11/17/2015)

11/19/2015

251 Order of Transportation. Ordered by Judge Joseph F. Bianco on 11/19/2015. (Bollbach, Jean) (Entered: 11/20/2015)

11/20/2015

252 NOTICE OF APPEAL as to 247 Judgment by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 11/20/2015)

11/20/2015

Electronic Index to Record on Appeal sent to US Court of Appeals. 252 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Cox, Dwayne) (Entered: 11/20/2015)

11/20/2015

APPEAL FILING FEE DUE re 252 Notice of Appeal Please either come to the clerks ofﬁce or mail the ﬁling fee in the amount of $505.00. (Cox, Dwayne) (Entered: 11/20/2015)

11/24/2015

USCA Appeal Fees received $ 505 receipt number 19002 re 252 Notice of Appeal ﬁled by William Allen Moore, Jr., Melissa Zarda (Shatinsky, Michael) (Entered: 11/24/2015)

12/09/2015

253 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/10/2014, before Judge Joseph F. Bianco. Transcriber Tracy Gribben Transcription LLC, Telephone number 732-263-0044. Email address: Tracy@tgribbentranscription.com. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2015. Redacted Transcript Deadline set for 1/11/2016. Release of Transcript Restriction set for 3/8/2016. (Cox, Dwayne) (Entered: 12/09/2015)

12/09/2015 254 Mail Returned as Undeliverable. Mail sent to Gregory Antollino - receipt returned unable to forward (Bollbach, Jean) (Entered: 12/10/2015)

12/10/2015 255 NOTICE of Change of Address by Gregory S. Antollino (Antollino, Gregory) (Entered: 12/10/2015)

02/26/2018

256 CERTIFIED ORDER of USCA 15-3775 as to 252 Notice of Appeal ﬁled by William Allen Moore, Jr., Melissa Zarda. We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination because of... sex, in violation of Title VII, and overturn Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211, 217-23 (2d Cir. 2005), to the extent they held otherwise. We therefore VACATE the district courts

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judgment on the Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects. (Landow, Concetta) (Entered: 02/26/2018)

03/19/2018

257 MANDATE of USCA 15-3775 as to 252 Notice of Appeal ﬁled by William Allen Moore, Jr., Melissa Zarda. IT IS HEREBY ORDERED, ADJUDGED and DECREED that, after en banc rehearing, the judgment of the district court on Zardas Title VII claim is VACATED and the case is MANDATE REMANDED for further proceedings consistent with this Courts opinion. The judgment of the district court is AFFIRMED in all other respects. (Landow, Concetta) (Main Document 257 replaced on 4/11/2018) (Landow, Concetta). (Entered: 03/20/2018)

04/11/2018

258 MOTION for pre motion conference regarding successor liabilty, MOTION for Discovery regarding successor liabilty by William Allen Moore, Jr, Melissa Zarda. (Attachments: # 1 Exhibit SDLI, Inc. Website (1), # 2 Exhibit SDLI, Inc. Website (2)) (Antollino, Gregory) (Entered: 04/11/2018)

04/12/2018

259 RESPONSE in Opposition re 258 MOTION for pre motion conference regarding successor liabilty MOTION for Discovery regarding successor liabilty ﬁled by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/12/2018)

04/12/2018 260 REPLY in Support re 259 Response in Opposition to Motion ﬁled by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 04/12/2018)

04/12/2018

SCHEDULING ORDER: The Court has received the parties' April 11, 2018 and April 12, 2018 letters. IT IS HEREBY ORDERED that the parties shall participate in a telephone conference with the Court on Monday, May 14, 2018, at 1:15 p.m. to discuss counsel for plaintiff's request. At the time of the conference, counsel for plaintiff shall initiate the call and, once all parties are on the line, shall contact Chambers at (631) 712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/12/2018. (Kuhn, Alyssa) (Entered: 04/12/2018)

04/16/2018 261 MOTION for Hearing by Altitude Express, Inc., Ray Maynard. (Zabell, Saul) (Entered: 04/16/2018)

04/16/2018

262 RESPONSE to Motion re 258 MOTION for pre motion conference regarding successor liabilty MOTION for Discovery regarding successor liabilty, 261 MOTION for Hearing ﬁled by William Allen Moore, Jr, Melissa Zarda. (Antollino, Gregory) (Entered: 04/16/2018)

04/18/2018

ORDER granting in part and denying in part 261 Motion for Hearing. The Court has received (i) counsel for defendants' April 16, 2018 letter requesting that the telephone conference scheduled for May 14, 2018 be converted to an in-person conference, and (ii) counsel for plaintiff's April 16, 2018 letter opposing this request. IT IS HEREBY ORDERED that the request is granted in part and denied in part. Speciﬁcally, no party is required to appear in person. Counsel may appear in person or by telephone. If counsel appears by telephone, counsel shall follow the instructions set forth in the Court's April 12, 2018 Scheduling Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/18/2018. (Kuhn, Alyssa) (Entered: 04/18/2018)

05/04/2018 263 Letter re May 14 conference by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 05/04/2018)

05/14/2018

SCHEDULING ORDER: Due to a conﬂict in the Court's calendar, IT IS HEREBY ORDERED that the conference scheduled for today, May 14, 2018, at 1:15 p.m. is rescheduled for Thursday, May 17, 2018, at 3:00 p.m. As with the conference scheduled for today, no party is required to appear in person. Counsel may appear in person or by telephone. If counsel appears by telephone, counsel shall follow the instructions set forth

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in the Court's April 12, 2018 Scheduling Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/14/2018. (Kuhn, Alyssa) (Entered: 05/14/2018)
264 USCA Statement of Costs 15-3775 as to 252 Notice of Appeal ﬁled by William Allen Moore, Jr. and Melissa Zarda. IT IS HEREBY ORDERED that costs are taxed in favor of the Appellants in the amount of $3,693.80. (Landow, Concetta) (Entered: 05/14/2018)
SCHEDULING ORDER: IT IS HEREBY ORDERED that the telephone conference previously scheduled for earlier today is rescheduled for Monday, May 21, 2018, at 11:30 a.m. As with the conference scheduled for today, no party is required to appear in person. Counsel may appear in person or by telephone. If counsel appears by telephone, counsel shall follow the instructions set forth in the Court's April 12, 2018 Scheduling Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/17/2018. (Kuhn, Alyssa) (Entered: 05/17/2018)
265 Letter regarding cancelled conference and upcoming conference on successor liability by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 05/17/2018)
266 Letter in Response to Mr. Antollino's May 17, 2018 Correspondence to the Court by Altitude Express, Inc., Ray Maynard (Zabell, Saul) (Entered: 05/18/2018)
267 Letter in response to Zabell's letter of May 18 by William Allen Moore, Jr, Melissa Zarda (Antollino, Gregory) (Entered: 05/18/2018)
ORDER. With respect to the issue discussed at today's conference, the Court notes that New York Business Corporation Law Section 1006 provides that a dissolved corporation may participate in all court proceedings against it. Ordered by Judge Joseph F. Bianco on 5/21/2018. (Kuhn, Alyssa) (Entered: 05/21/2018)
268 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/21/2018, before Judge Joseph F. Bianco. Transcriber TypeWrite Word Processing Service, Telephone number 518-581-8973. Email address: transcripts@typewp.com. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/3/2018. Redacted Transcript Deadline set for 7/13/2018. Release of Transcript Restriction set for 9/10/2018. (Kanellopoulos, John) (Entered: 06/12/2018)

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 Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 1 of 31 PageID #: 1283

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DONALD ZARDA, Plaintiff,
-against-

Case No.: CV-10-4334 (JFB)(ARL)

ALTITUDE EXPRESS, INC. d/b/a SKYDIVE LONG ISLAND and RAY MAYNARD,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
Saul D. Zabell, Esq. Zabell & Associates, P.C. 1 Corporate Drive, Suite 103 Bohemia, New York 11716

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 2 of 31 PageID #: 1284
TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................................................................ iii I. PRELIMINARY STATEMENT ...................................................................................... 1 II. FACTS .......................,......................................................................................................... 1 III. LEGAL STANDARD .................................................................................................... 1-2 IV. ARGUMENT ......................................................................................................................2
A. Plaintiff's Gender Stereotype Discrimination Claims Under Title VII and NYSHRL Fail as a Matter of Law .......................................................................... 2-3 1. Plaintiff was not subjected to gender stereotyping because he is male ........... 3-7 2. Plaintiff was not subject to gender stereotyping because he disclosed his sexual orientation............................................................................................................. 8-9 3. Plaintiff was not subjected to discrimination based on non-conforming gender stereotypes ................................................................................................................9 i. Non-Conforming Gender Stereotype ................................................................ 9-15 ii. Hostile Work Environment............................................................................ 15-16
B. Plaintiff's Claim for Sexual Orientation Discrimination Under The NYSHRL Fails as a Matter of Law ............................................................................................ 16 1. Disparate Treatment........................................................................................ 16-20 2. Hostile Work Environment ............................................................................. 21-22
C. Plaintiff Has Withdrawn his Minimum Wage and Overtime Claim Under the FLSA ...........................................................................................................................22
D. Plaintiff's Minimum Wage Claim Under NYLL Fails as a Matter of Law.... 22-24 E. Overtime under NYLL ........................................................................................ 24-25 V. CONCLUSION ................................................................................................................26

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 3 of 31 PageID #: 1285
TABLE OF AUTHORITIES UNITED STATES SUPREME COURT Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................................................2 Celotex v. Catrett, 477 U.S. 317 (1986) ..........................................................................................2 Faragher v. City of Boca Raton, 524 U.S. 775 (1998)....................................................... 10, 21-22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ....................................;... 2-3, 16-17, 19 Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986) ...........................................................15 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ........................................................................3 FEDERAL COURT CASES United States Court of Appeals Back v. Hastings On Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004).................................................................................................3 Carrero v. New York City Housing Authority, 890 F.2d 569 (2d C_ir.l989)................................. 15 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ......................................... 8-11, 13-17 Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998) ..................................................... 15-16, 21-22 Grady v. Affiliated Cent., Inc., 130 F.3d 553 (2d Cir.1997) ................................................... 17-19 Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494 (2d Cir. 2001) ...................................................2 Kiley v. Am. Soc. for Prevention of Cruelty to Animals,
296 F. Appx. 107 (2d Cir. 2008) ........................................................................................ 13 Kotcher v. Rosa & Sullivan Appliance Ctr., Inc.,
957 F.2d 59 (2d Cir. 1992)...............................................-............................................ 15-16 Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) ................................................................................ 17 Miller v. City ofNew York, 177 Fed. Appx. 195 (2d Cir. 2006) .........._.................................. 14-15 Niagara Mohawk Power Corp. v. Jones Chern. Inc.,
315 F.3d 171 (2d Cir. 2003).................................................................................................2

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 4 of 31 PageID #: 1286
Patterson v. County of Oneida, N.Y., 375 F.3d 206 (2d Cir. 2004) ..........................................3, 26 Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98 (2d Cir. 2011)...................................................................................................2 Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2008)...................................................................6, 7 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .......................................................................3, 8 Sweeney v. Research Foundation of the State Univ. ofN.Y.,
711 F.2d 1179 (2d Cir. 1983)............................................................................................. 17 Trigg v. New York City Transit Auth., 50 F. Appx. 458 (2d Cir. 2002) ....................................... 10 Wernick v. Federal Reserve Bank ofNew York, 91 F.3d 379 (2d Cir 1996) ................................. 1
Wrighten v. Glowski, 232 F.3d 119 (2d Cir. 2000) ...................................................................3, 26
Federal District Court Chanval Pellier v. British Airways, Pic.,
2006 WL 132073 (E.D.N.Y. Jan. 17, 2006) .......................................................... 13, 15-16 Chin v. ABN-AMRO N. Am., Inc., 463 F. Supp. 2d 294 (E.D.N.Y. 2006) .................................. 17 Cooper v. Morgenthau,
2001 WL 868003 (S.D.N.Y. July 31, 2001) ............................................................... 18- 19 Hayes v. Cablevision Sys. New York City Corp.,
2012 WL 1106850 (E.D.N.Y. Mar. 31, 2012) ................................................................... 19 Iverson v. Verizon Communications,
2009 WL 3334796 (S.D.N.Y. Oct. 13, 2009) ................................................................7, 19 Martin v. New York State Dep't ofCorr. Servs.,
224 F.Supp.2d 434 (N.D.N.Y.2002) .................................................................................... 8 Swift v. Countrywide Home Loans, Inc.,
770 F. Supp. 2d 483 (E.D.N.Y. 2011) .................................................................................8 Trigg v. New York City Transit Auth.,
2001 WL 868336 (E.D.N.Y. July 26, 2001) ............................................................ 8-10, 12 Tyrrell v. Seaford Union Free Sch. Dist.,
792 F. Supp. 2d 601 (E.D.N.Y. 2011) .................................................................................8
ii

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 5 of 31 PageID #: 1287
Viruet v. Citizen Advice Bureau, 2002 WL 1880731 (S.D.N.Y. Aug. 15, 2002) ...................................................................21
Zambrano-Lamhaouhi v. New York City Bd. ofEduc., 866 F. Supp. 2d 147 (E.D.N.Y. 2011) .................................................................................2
Zuffante v. Elderplan, Inc., 2004 WL 744858 (S.D.N.Y. Mar. 31, 2004) ............................................................... 17-18
STATE COURT CASES Edwards v. Jet Blue Airways Corp., 873 N.Y.S.2d 233 (Sup. Ct. 2008) ......................................25 Stephenson v. Hotel Employees & Rest. Employees
Union Local100 ofthe AFL-CIO, 6 N.Y.3d 265 (2006) ..................................................16 STATUTES & REGULATIONS 29 U.S.C. § 215(a) (3)....................................................................................................................25 29 U.S.C. § 215(a) (3) (b) ..............................................................................................................25 12 N.Y.C.R.R. § 142-2.16 .............................................................................................................23 12 N.Y.C.R.R. § 142-2.2......................................................................................................... 24-25 Fed. R. Civ. P. 56 .................................................................................................................... 1-2, 26 Fed. R. Civ. P. Rule 56(c) ................................................................................................................ 1 Fed. R. Civ. P. 56(e) ........................................................................................................................2 Local Civil Rule 56.1 .......................................................................................................................2 New York State Human Rights Law ..................................................................................... 2-3, 16 New York Labor Law §190..................................................................................................... 22-23 New York Labor Law § 652.................................................................................................... 22-23 The Fair Labor Standards Act of 1938.............................................................................. 22, 24-25 Title VII of the Civil Rights Act of 1964.................................................................. 2-3, 8-9, 14, 16
iii

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I. PRELIMINARY STATEMENT Defendants, Altitude Express, Inc. d/b/a Skydive Long Island ("SDLI") and Ray Maynard, respectfully submit this memorandum of law in support to their Fed. R. Civ. P. 56 motion for summary judgment seeking ,dismissal of Plaintiffs Amended Complaint in its entirety. As set forth in detail below, Plaintiff was formerly employed by Defendant SDLI as a skydive instructor. Plaintiff seeks to recover damages for discrimination and wage and hour infractions he alleges occurred from May 2009 to June 2010. However, whether by direct admission or documentary evidence, Plaintiff fails to meet his evidentiary burden for all such claims. Consequently, Defendants' motion for summary judgment should be granted in its entirety as no material issues of fact exist sufficient to warrant the resolution of this dispute at trial.
II. FACTS The material facts in this case are undisputed and are contained within Defendants' 56.1 statement and, for purposes of avoiding redundancy, will not be repeated herein. 1
III. LEGAL STANDARD Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. Rule 56(c); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). Where the moving party has met the threshold burden of supporting the
1 The facts in this case are derived from deposition testimony of all named parties, Rosanna Orellana, David Kengle, Lauren Callanan, and Richard Winstock. True and accurate copies of which are annexed to the Declaration of Saul D. Zabell dated February 11, 2013 as Exhibits 11-16. Additional documentary evidence is annexed thereto as Exhibits 1 through 10.
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motion, the opposing party must "set forth specific facts showing that there is a genuine issue for . trial." Fed. R. Civ. P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes.
The non-movant will not defeat summary judgment merely by pointing to self-serving conclusory allegations without evidentiary support. See Niagara Mohawk Power Corp. v. Jones Chern. Inc., 315 F.3d 171, 175 (2d Cir. 2003); Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001 ). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only factual disputes that might affect the outcome of the litigation, in light of the substantive law, will preclude summary judgment. Id. When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986).
IV. ARGUMENT A. Plaintiff's Gender Stereotype Discrimination Claims Under Title VII and the NYSHRL Fail as a Matter of Law
Plaintiffs claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law (NYSHRL) each fail as matter of law? In order to survive summary judgment for a claim of discrimination, Plaintiff must meet the burden shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by demonstrating that "(1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class." Id.
2 The analysis for Plaintiffs Title VII claims also applies to Plaintiffs claim for gender stereotyping under the New York State Human Rights Law, as claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n. 10 (2d Cir. 2011); Zambrano-Lamhaouhi v. New York City Bd. ofEduc., 866 F. Supp. 2d 147, 159 (E.D.N.Y. 2011).
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Plaintiff attempts to bring Title VII and NYSHRL claims under three separate theories of gender stereotyping; none of which are valid.3 First and foremost, Plaintiffs claims should be dismissed based on Plaintiffs belief that he was terminated because of his sexual orientation. Plaintiff testifies repeatedly that he believes the reason he was terminated is because of his sexual orientation. (Zarda Dep. pg. 116:9-12, 134:12-15, 215:8, 278-279:11-2, 281:21-24). Such testimony is at odds with Plaintiffs claim he was discriminated pursuant to a gender stereotype, as, under Title VII, a gender stereotype cannot be predicated on sexual orientation. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000). On that basis alone, Plaintiffs claims for gender stereotyping should be dismissed. Nevertheless, each of Plaintiffs three theories of gender stereotyping, as discussed further below, is either contradictory or inherently flawed, and therefore cannot survive summary judgment as a matter of law.
1. Plaintiff was not subjected to gender stereotyping because he is male The United States Supreme Court has held that evidence of gender stereotyping may establish a violation of Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989}. An employer subjects an employee to gender stereotyping by assuming an employee will conform to a stereotype of their gender. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,119 (2d Cir. 2004) (holding stereotyping applies "to the supposition that a woman will conform to a gender stereotype"). Stereotype remarks can be "evidence that gender played a part in an adverse employment decision." Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) (internal quotations omitted).
3 To the extent Plaintiff attempts to hold Mr. Maynard individually liable for claims of discrimination under Title VII, those claims are impermissible as a matter of law and must be dismissed. "[I]ndividuals are not subject to liability under Title VII." Patterson v. Countv of Oneida. N.Y., 375 F.3d 206,221 (2d Cir. 2004); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam).
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Plaintiff alleges he was terminated based on a male gender stereotype. In so arguing, Plaintiff contends that Defendants assumed Plaintiff sexually harassed a woman because he is male. (See Amended Complaint ~ 44, 48). However, the record is devoid of evidence supporting Plaintiffs theory. The factual record establishes that a customer complained about Plaintiffs behavior during a tandem skydive which resulted in Plaintiffs immediate suspension and subsequent termination. Specifically, on June 18, 2010, Plaintiff took Rosanna Orellana ("Orellana") on a tandem skydive. (Zarda Dep. pg. 201-202:24-4). Orellana believed Plaintiff behaved inappropriately during the skydive, touching her hips, resting his head on her shoulder, and discussing the intimate details of his personal life. (Orellana Dep. pg. 47:5-13; 48:15-18, 89:10-20, 50:14-18). Plaintiffs behavior and inappropriate contact made Orellana and her boyfriend, David Kengle ("Kengle"), uncomfortable, so much so, that they lodged a complaint with SDLI. (Orellana Dep. pg. 100-101:25-2, 60:4-8, 49:3-5; Kengle Dep. pg. 23-24:22-5, 27:29, 62-63:20-3, 66:15-18, 31:13-15). As a result of this complaint, Plaintiff was immediately suspended and ultimately terminated by Defendants. (Zarda Dep. pg. 40:6, 43:10-13, 44:3, 218:20-21; Maynard Dep. pg. 196:10-18, 282:3).
Plaintiffs termination was not due to his gender or Mr. Maynard's purported stereotype of the male gender. Rather, Mr. Maynard merely reacted to a customer complaint regarding the inappropriate conduct of one of his instructors. (Zarda Dep. pg. 235:17-22, 172:13-18, 243:1114, 227:4-15, 227-228:23-7, 281:21-24; Maynard Dep. pg. 247:14-15, 229:3-21). Furthermore, the complaint from Orellana was the second time a customer had complained about Plaintiffs behavior during a skydive. (Zarda Dep. pg. 57:10-19, 216-217:20-6, 285:11-16). In his more than twenty years of running SDLI, Plaintiff is the only skydiving instructor Mr. Maynard has ever received complaints about. (Maynard Dep. pg. 66:8-21, 69:9-14, 297:11-21; Winstock Dep.
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pg. 19:1 0-13). In terminating Plaintiff, Maynard eliminated an instructor who failed to provide SDLI's customers with an enjoyable experience. Plaintiffs termination was not a function of a gender stereotype, but a reaction to Plaintiffs inability to provide a satisfactory customer experience at SDLI. (See Zarda Dep. pg. 235:17-22, 172:13-18, 243:11-14, 227:4-15, 227228:23-7, 281:21-24, 57:10-19, 216-217:20-6, 285:11-16; Maynard Dep. pg. 247:14-15, 229:321 ). Indeed, Plaintiff was suspended, and subsequently terminated, in the immediate wake of the customer complaint- Maynard suspended him the very same day the complaint was received. (Zarda Dep. pg. 36:10-12, 37:7-14, 39:15-17, -40:6; Maynard Dep. pg. 183:15-21). The close proximity between the customer complaint and Plaintiffs suspension indicates Maynard was reacting to a complaint regarding Plaintiffs performance, not his gender or any corresponding stereotype.
It is nonsensical for Mr. Maynard to have terminated Plaintiff based on a stereotype of the male gender, as Maynard was at all relevant times well aware of Plaintiffs sexual orientation. (Zarda Dep. pg. 78:11-17, 78:18-22, 79:2-6). Each time Plaintiff sought seasonal employment at SDLI (in 2001, 2009, and 2010) Mr. Maynard knew Plaintiff was homosexual. (Zarda Dep. pg. 78:11-17, 78:18-22, 79:2-6; Maynard Dep. pg. 135:17-20; Winstock Dep. pg. 18:5-7, 101 :10-12). It is incongruous that Maynard, knowing Plaintiff is homosexual, would assume he touched a woman inappropriately solely based upon his gender. It is therefore contrary to all facts in evidence that Mr. Maynard based his decision to terminate Plaintiff on a male stereotype.
Finally, even if, in the unlikely event, this court finds Maynard's investigation of Orellana's complaint to be insufficient, the facts surrounding Plaintiffs termination still fail to raise an inference of discrimination. Assuming, arguendo, Orellana's complaint could be
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considered a complaint of sexual harassment, an arguably insufficient investigation of a complaint of sexual harassment leading to an adverse employment action is not, by itself, sufficient to raise an inference of discriminatory intent. Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2008). "[O]nly where a plaintiff can point to evidence closely tied to the adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discriminatory intent." Id. Here, even if Mr. Maynard did not conduct a sufficient investigation (which Defendants do not admit and the evidence does not support), Plaintiff cannot point to any evidence indicating discrimination drove Defendants' decision to terminate his employment. Plaintiff was terminated because a customer complained about his performance; a significant event as Defendants operate a customer service business. There were no comments made implicating a gender stereotype during Plaintiffs termination, or for that matter, during the entirety of his employment, sufficient to raise an inference of impermissible discrimination. (See Zarda Dep. pg. 218:20-21, 235:17-22, 172:13-18, 243:11-14, 227:4-15, 227-228:23-7, 281:2124; Maynard Dep. pg. 282:3). Plaintiffs claim is rooted in supposition, without corresponding evidence of any kind.
In Plaintiffs December 4, 2012 letter addressed to Your Honor, Plaintiff relies on the decision in Sassman v. Gamache, 566 F.3d 307 (2d Cir. 2009) to support his theory of gender stereotyping. (See ECF Doc. No.: 106 (Def. Ex. 10)). However, this case is factually distinguishable from Sassman. In Sassman, the plaintiff was terminated for allegedly sexually harassing a fellow employee. Id. During his termination, the plaintiffs supervisor told the plaintiff: "you probably did what she said you did because you're male." Id. at 312. The Court. held this gender stereotyping comment was sufficient to raise an inference of discriminatory
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intent. Id. Here, however, no such comments were made during Plaintiffs termination. Maynard terminated Plaintiff in response to Kengle and Orellana's complaint. (See Zarda Dep. pg. 172:1318,218:20-21,235:17-22,243:11-14,227:4-15,227-228:23-7, 281:21-24; Maynard Dep. pg. 282:3). This case is further distinguishable because Plaintiff was not accused of sexual harassment by a fellow employee. Instead, a customer complained about Plaintiffs behavior, which is a legitimate basis for terminating an employee. See Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) (holding termination was for legitimate business reasons because plaintiff received multiple customer complaints). In terminating Plaintiff, Maynard did not assume he committed sexual harassment because of his gender. Rather, Maynard reacted to a complaint from a customer; an act objectively unrelated to Plaintiff's gender and to any gender stereotypes.
Based on the deposition testimony and the evidence produced in this case, there exists no issue of material fact regarding the alleged gender stereotyping of Plaintiff. The record verifies Mr. Maynard did not assume Plaintiff sexually harassed Orellana because he is a man. Quite the contrary, Mr. Maynard was at all times aware of Plaintiffs sexual orientation and his actions were undertaken in direct response to a complaint regarding Plaintiffs conduct on a jump. As such, Plaintiffs claims must be dismissed with prejudice.
We would be remiss if we failed to note that Plaintiffs argument in support of this theory is at odds with his concurrent claim for discrimination predicated upon his sexual orientation. These two claims are inherently contradictory; Plaintiff cannot in one instance be terminated because he is gay and another because he· is a man who "besmirched" a woman's honor. (See ECF Doc. No.: 106, pg. 2 (Def. Ex. 10)).
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2. Plaintiff was not subject to gender stereotyping because he disclosed his sexual orientation
It is well settled that "Title VII does not prohibit harassment or discrimination because of sexual orientation." Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005). Because the stereotypical notions regarding how men and women should behave necessarily blur into sexual orientation, the Second Circuit has recognized that claims for gender stereotyping should not be used to "bootstrap protection for sexual orientation in to Title VII." Simonton, 232 F.3d at 38; Dawson, 398 F.3d at 218; Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 488 (E.D.N.Y. 2011). This Circuit has "repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes." Dawson, 398 F.3d at 219; see Trigg v. New York City Transit Auth., 2001 WL 868336, at *6 (E.D.N.Y. July 26, 2001) (rejecting gender stereotyping claim because plaintiffs "Amended Complaint is rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality"); Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 623 (E.D.N.Y. 2011) (rejecting Plaintiffs gender stereotyping claims because it was based upon "students calling her ·such names as 'lesbian' and 'carpet-muncher,' which are directly related to her sexual orientation, not her gender); Martin v. New York State Dep't of Corr. Servs., 224 F.Supp.2d 434, 447 (N.D.N.Y. 2002) (holding the harassment experienced by the plaintiff- "[t]he name~calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.").
Under this alternate theory of gender discrimination, Plaintiff alleges he was terminated because he failed to comply with male gender stereotypes. However, this theory amounts to nothing more than a re-packaged claim for Plaintiffs discrimination based upon sexual
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orientation. Plaintiffs alleged non-conformance with the male gender stereotype is directly related to his sexual orientation. In this particular instance, Plaintiffs claim for gender stereotyping is premised on the disclosure of his sexual orientation to Orellana, an act which he concedes was designed to ease her noticeable discomfort with his prior actions. (Zarda Dep. pg. 139-140:22-8, 173:15-19; 228-229:2-10). Plaintiffs argument, at its essence, is that he was terminated for di,sclosing to Orellana that he is homosexual, because it is contrary to the male gender stereotype to do so. However, this argument relies of the fact that Plaintiff is homosexual, not that he failed to comply with male gender norms. Thus, Plaintiffs merely attempts to bring a defective sexual orientation claim under Title VII, which is legally invalid. See Dawson, 398 F.3d at 221. As such, Plaintiff fails to state a legally cognizable basis for his Title VII claim and summary judgment is appropriate on this theory of gender stereotyping.
3. Plaintiff was not subjected to discrimination based on non-conforming gender stereotypes
i. Non-Conforming Gender Stereotype Under Title VII, "[s]ex stereotyping [by an employer] based on a person's gender nonconforming behavior is impermissible discrimination." Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (internal quotations omitted). An employee can fail to conform to gender stereotypes through either (1) behavior or (2) appearance. Id. at 221. However, to state such a claim under Title VII, the employee must demonstrate that he faced an adverse employment action as a result of the employer's animus toward the employee's "exhibition of behavior considered to be stereotypically inappropriate for their gender." Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005). The "sporadic use of abusive language, gender-related jokes and occasional teasing" is too isolated to amount to a change in the terms and conditions of employment under Title VII. Trigg v. New York City Transit Auth., 99-CV-4730 (ILG), 2001
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WL 868336 (E.D.N.Y. July 26, 2001) affd, 50 F. App'x 458 (2d Cir. 2002) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
Factual evidence confirms Plaintiff was not subjected to discrimination based on his selfdescribed failure to conform his behavior to male gender stereotypes. There is no evidence that Plaintiff behaved in steteotypically feminine manner. Rather, the record is rife with evidence indicating that Plaintiffs conduct was in no way different from that of any other male employee at SDLI. Indeed, Plaintiff behaved just like the other instructors at SDLI, so much so, his behavior could not be distinguished from that of his comparators. (Zarda Dep. pg. 79-80: 16-17). Plaintiff admits he did not conduct himself in any manner that would set him apart from the other instructors. (Zarda Dep. pg. 79-80: 16-17). Additionally, Plaintiff concedes he acts in a masculine, not feminine, manner. (Zarda Dep. pg. 116:21-25, 364:21-23). This evidence confirms that Plaintiffs behavior was no different from his fellow male employees and that he in fact had a masculine affect. These admitted facts contradict Plaintiffs claim that his behavior did not conform to prevailing male gender stereotypes because he behaved in a feminine manner. (See Amended Complaint ~ 26-28). Given the undisputed fact that Plaintiff behaved in a masculine manner, just as every other male employee at SDLI, Plaintiff cannot sustain a claim for discrimination based on his purported failure to conform his behavior to the male gender stereotype.
Additionally, even if Plaintiff failed to conform his behavior to prevailing male stereotypes, he cannot demonstrate he suffered an adverse employment action as a result. See Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (holding Plaintiff could not state a claim for discrimination because she could not demonstrate she suffered an adverse employment action as a result of her behavior non-conformance: "she was not told by anyone at
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Bumble & Bumble that her continued employment depended upon her acting and speaking in a more ''feminine" manner" or that her "work assignments were restricted in any way to those considered ''appropriate" for a woman to perform."). Plaintiff presents no evidence indicating that he was terminated because his behavior failed to conform to the male stereotype. To the contrary, Plaintiff was terminated because of a customer complaint. (Zarda Dep. pg. 235:17-22, 172:13-18, 243:11-14, 227:4-15, 227-228:23-7, 281 :21-24). During his termination, no comments were made indicating that Plaintiff was being terminated because he behaved femininely. As such, Plaintiff cannot maintain a claim for discrimination based on his purported failure to conform his behavior to the male stereotype.
Furthermore, there exists no evidence that Plaintiff was subjected to discrimination because his appearance failed to conform to the male gender stereotype. Plaintiff concedes he was not effeminate, but masculine in appearance. (Zarda Dep. pg. 121-122:16-6, 365:3-10, 116:21-25, 364:21-23). Indeed, Plaintiff acknowledges he is a physically fit man, who bears an outwardly masculine appearance. (Zarda Dep. pg. 121-122:16-6, 365:3-10, 116:21-25, 364:2123). Plaintiff admits that his "athletic" appearance often leads others to believe he is heterosexual, and is contrary to what "a lot of gay people look like." (Zarda Dep. pg. 121:7-8, 121-122:16-6, 365:3-10). Plaintiffs testimony confirms he did not fail to conform to male gender stereotypes by appearing effeminate. To the contrary, Plaintiff concedes he conformed to the male stereotype, appearing both physically fit and masculine. (Zarda Dep. pg 1'21-122: 16-6, 365:3-10, 116:21-25, 364:21-23). To state a claim for gender stereotyping, Plaintiff must fail to conform in appearance to the male stereotype. Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005). This is simply not the case here. As such, Plaintiff cannot state a claim for gender stereotyping based on his appear,ance alone.
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While bearing a masculine appearance, Plaintiff would occasionally wear a pink baseball cap during work at SDLI. (Zarda Dep. pg. 120:4-14, 125-126:22-7). However, sporadic instances of supposed non-conforming gender behavior are insufficient to infer that Plaintiff did not conform to male gender stereotypes. This is especially true because wearing pink articles of clothing is not specifically feminine; heterosexual men also wear pink on occasion. (Zarda Dep. pg. 120:15-17, 126-127:13-4). However, even if in the unlikely event Plaintiffs article of pink clothing is somehow sufficient to demonstrate he failed to conform to the stereotypical appearance of a male, Plaintiffs claim still fails because he cannot present sufficient evidence to demonstrate that he was subjected to discrimination as a result of his appearance.
Plaintiff asserts that several employees would make comments about his pink baseball cap, indicating that it was feminine. (Zarda Dep. pg. 120:15-17, 125-126:22-7). However, when questioned, Plaintiff could not identify any alleged individuals who made comments or any of the alleged comments. (Zarda Dep. pg. 120-121 :4-9). Importantly, because Plaintiff could not identify any comments or those who made them, there is no evidence indicating that the alleged comments were anything more than occasional, thus their existence does not constitute a change in the terms and conditions of Plaintiffs employment. See Trigg v. New York City Transit Auth., 2001 WL 868336 (E.D.N.Y. July 26, 2001) (holding occasional comments and teasing were insufficient to change the terms and conditions of plaintiffs employment). Additionally, when given the opportunity, Plaintiff failed to identify Mr. Maynard as having made any inappropriate comments regarding his pink hat. (Zarda Dep. pg. 120-128). In fact, Mr. Maynard was never heard making such comments about Plaintiff. (Winstock Dep. pg. 36:9-11). As the principal decision maker at SDLI, Mr. Maynard never issued comments which implicated a gender stereotype. As such, Plaintiff cannot demonstrate he was subjected to an adverse
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employment action because of the alleged comments regarding his pink clothing. See id. Furthermore, Plaintiff concedes that he was not offended by any of the comments made by his co-workers. (Zarda Dep. pg. 122:15-19). Plaintiff cannot have experienced a material change in the terms and conditions of his employment when the comments were, at best, sporadic and Plaintiff admittedly did not find them offensive in nature. See Chanval Pellier v. British Airways, Pic., 2006 WL 132073, at *6 (E.D.N.Y. Jan. 17, 2006) (holding that comments must be subjectively offensive to alter the terms and conditions of employment).
Finally, Plaintiff cannot show he suffered an adverse employment action resulting from his alleged non-conformance to the male stereotype. See Dawson, 398 F.3d at 221 (holding Plaintiff must demonstrate an adverse employment action as a result of Plaintiff's nonconforming appearance); Kiley v. Am. Soc. for Prevention of Cruelty to Animals, 296 F. App'x 107, 110 (2d Cir. 2008) (holding plaintiff could not maintain a claim for gender stereotyping based on her supervisor's gender stereotype comments regarding women when she does not state how these assumptions resulted in an adverse employment decision). Admittedly, Plaintiff's termination was a direct response to a customer complaint, not because Mr. Maynard believed he did not conform to the male stereotype. (Zarda Dep. pg. 235:17-22, 172:13-18, 243:11-14, 227:4-15, 227-228:23-7, 281:21-24). Again, no comments were made during Plaintiff's termination meeting indicating he was terminated because of his alleged feminine behavior or appearance. The testimony reflects that the termination was based solely on the customer complaint, not because Plaintiff did not behave or appear masculine enough. (Maynard Dep. pg. 226:3-16, 227:8-10, 247:14-15). In fact, the evidence indicates that Plaintiff was invited to return to SDLI multiple times, despite any alleged femininity or other purported non-compliance with prevailing gender stereotypes. (Zarda Dep. pg. 58-59:22-6, 76:22-25, 77:17-22; Maynard Dep.
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pg. 149:9-12, 155-156:23-6, 165:15-18). Consequently, Plaintiff could not have been terminated based his alleged non-conformance to the male gender stereotype.
The facts of this case are analogous to those found in Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2004). In Dawson, the plaintiff, a lesbian with a "manly" appearance, claimed to have been terminated for failing to conform to gender stereotypes. Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2004). However, the court held she could not assert a claim under Title VII because she had (1) presented no facts indicating her continued employment was conditioned on her acting more feminine or that her work was affected because she was not feminine; and (2) presented no facts that she was subjected to any adverse employment action as a result of her more "manly" appearance. Id. Similarly, here, Plaintiff presents no facts sufficient to demonstrate his employment was, in any way, affected because he did not act or appear "manly" enough. To the contrary, the record demonstrates that Plaintiff was masculine in both his physical appearance and in his demeanor. Here, as in Dawson, Plaintiff was not subjected to an adverse employment action as a result of his appearance and/or behavior. See id. at 222-23.
To the extent Plaintiff may rely on Miller v. City of New York, this case is factually distinct. In Miller, the plaintiff was told he was not a "manly man" and not a "real man" because of his size and disability. Miller v. City of New York, 177 Fed.Appx. 195 (2d Cir. 2006). The plaintiff was verbally harassed by his boss for not being "manly" and was forced to perform heaving lifting "to toughen him up." Id. The court held that these facts demonstrate that the terms and conditions of the plaintiffs employment were affected by his inability to conform to a male stereotype. Id. No such facts exist here. Primarily, the evidence demonstrates that Plaintiff did conform to the male stereotype - Plaintiff is masculine, physically fit, and is often mistaken for heterosexual based on his masculine appearance. (Zarda Dep. pg. 121-122:16-6, 365:3-10,
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116:21-25, 364:21-23). Additionally, no evidence exists demonstrating that the terms and conditions of Plaintiffs employment were affected because of his alleged non-conformance to a male stereotype. Unlike Miller, the material terms and conditions of Plaintiffs position were not changed because of his self-described failure to conform to the male stereotype.
ii. Hostile Work Environment To state a claim for hostile work environment predicated on Plaintiffs alleged failure to conform to the male gender stereotype, Plaintiff must demonstrate that the comments regarding Plaintiffs gender "were so severe or pervasive to create a hostile or abusive work environment." Dawson v. Bumble & Bumble, 398 F.3d 211, 223 (2d Cir. 2005). In determining whether such a claim exists, the "court should consider the offensiveness of the defendant's conduct, its pervasiveness, and its continuous nature." Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992) (citing Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir.1989)). The harassment must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Id. (quoting Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67 (1986)). This requires the conduct to be "repeated and continuous; isolated acts or occasional episodes are insufficient." Id. (internal citations omitted). Additionally, the conduct must be unwelcome and offensive, and the plaintiff must subjectively perceive it to be hostile. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992); Chanval Pellier v. British Airways, Plc., 2006 WL 132073, at *6 (E.D.N.Y. Jan. 17, 2006) (quoting Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998)). To the extent Plaintiff claims he was subjected to a hostile work environment based on his purported non-conformance to typical male stereotypes, Plaintiff was not subjected to pervasive offensive comments creating an abusive working environment at SDLI. Plaintiff
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waived any and all such putative claims as he admits that he was not offended by comments made regarding his pink clothing. (Zarda Dep. pg. 122:15-19); Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992); Pellier, 2006 WL 132073, at *6; Gallagher, 139 F.3d at 346-47. As Plaintiff was admittedly not offended by his co-workers' comments, his claim for discrimination fails as a matter of law. Pellier, 2006 WL 132073, at *6.
Plaintiff fails to meet his evidentiary burden under the familiar McDonnell Douglas burden shifting analysis for a claim of non-conforming gender stereotypes, as Plaintiff admits he conformed to his gender stereotype and did not experience a change in the terms and conditions of his employment resulting from any alleged non-conformance. As such, Plaintiffs claim fails, and must be dismissed.
It is notable that Plaintiffs theory of discrimination based on non-conforming gender stereotypes contradicts Plaintiffs claim that he was discriminated because Defendants believed he acted consistent with male stereotypes. Plaintiff attempts, at the same time, to argue that he was terminated because Mr. Maynard believed he was a stereotypical male and that he was not stereotypical. Plaintiff cannot have it both ways. B. Plaintiff's Claim for Sexual Orientation Discrimination Under the NYSHRL Fails as a Matter of Law
1. Disparatee Treatment While not actionable under Title VII, claims of sexual orientation discrimination are actionable under the New York State Human Rights Law. Stephenson v. Hotel Employees & Rest. Employees Union Local 100 of the AFL-CIO, 6 N.Y.3d 265, 271 (2006); Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir. 2005). However, the question of whether such claims can survive summary judgment is determined by the McDonnell Douglas burden shifting analysis used for Title VII claims. Id.; Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir.
16

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 22 of 31 PageID #: 1304
2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To meet his burden Plaintiff must demonstrate that "(1) he is a member of a protected class;· (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class." Id. If the Plaintiff does so, "a presumption of discrimination arises and the burden shifts to the defendant to proffer some l_egitimate, nondiscriminatory reason for the adverse decision or action." Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). If the defendant does so, "the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. (internal quotations and citations omitted). In analyzing the defendant's business decision, courts must refrain from second-guessing a business's decision making process. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) see,~' Sweeney v. Research Foundation of the State Univ. ofN.Y., 711 F.2d 1179, 1187 n. 11 (2d Cir. 1983).
Plaintiff fails to meet his burden under the McDonnell Douglas analysis, because he cannot establish that he was terminated under circumstances which give rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Certain factors "strongly suggest that invidious discrimination [is] unlikely. For example, where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.l997); Chin v. ABN-AMRO N. Am., Inc., 463 F. Supp. 2d 294, 304 (E.D.N.Y. 2006); Zuffante v. Elderplan, Inc., 2004 WL
17

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 23 of 31 PageID #: 1305
744858, at *6 (S.D.N.Y. Mar. 31, 2004). Invidious discrimination is especially unlikely when the termination "occurred a short time after the hiring." Id. at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) ("The 'underlying rationale for the [same actor] inference is simple: it is suspect to claim that the same manager who hired a person in the protected class would suddenly develop an aversion to members of that class.' ").
Here, Mr. Maynard hired Plaintiff on three (3) separate occasions: 2001, 2009 and 2010. (Zarda Dep. pg. 56:19-20, 58-59:22-6, 76:22-25, 77:17-22; Maynard Dep. pg. 155-156:23-6, 165:15-18). Each time Maynard invited Plaintiff to work at SDLI, Maynard had full knowledge of Plaintiffs sexual orientation, as Plaintiff is openly gay. (Zarda Dep.,pg. 54:7-12, 62-63:8-14, 78:11-22, 79:2-6; Maynard Dep. pg. 135:17-20; Winstock Dep. pg. 18:5-7, 101:10-12). Mr. Maynard was aware of Plaintiffs sexual orientation yet continued to bring Plaintiff back to SDLI to work. Additionally, Maynard was the person who decided to fire Plaintiff. (Zarda Dep. pg. 56:19-20, 58-59:22-6,76:22-25, 77:17-22, 218:20-21; Maynard Dep. pg. 155-156:23-6, 165:1518, 282:3). Given that Maynard decided to hire Plaintiff, with full knowledge of his sexual orientation, and subsequently decided to fire him, there can be no inference of discrimination. Grady, 130 FJd at 560. It is illogical to suggest that Maynard would re-hire Plaintiff, knowing his sexual orientation, if he had any aversion to homosexuals. See Cooper, 2001 WL 868003, at *6. Additionally, Plaintiff was terminated within two (2) years of his hire date- he was hired late in 2008 and terminated in June 2010. (Zarda Dep. pg. 60-61:12-13, 218:20-21, Maynard Dep. pg. 282:3, 148:24). The short period between his hire date and his termination bears a strong inference that Plaintiff was not subjected to invidious discrimination. Grady, 130 F.3d at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) (holding the inference of no discriminatory animus due when plaintiff was hired and fired by the same person "should
18

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 24 of 31 PageID #: 1306
be accorded substantial weight where the time period between the hiring and firing is less than two years."). Moreover, Plaintiff was suspended and terminated in the immediate wake of a customer complaint. (Zarda Dep. pg. 36:10-12, 37:7-14, 39:15-17, 40:6; Maynard Dep. pg. 183:15-21). Again, the close proximity between the complaint about Plaintiffs conduct and his termination indicate that he was terminated based solely on his inability to satisfy a customer. The undisputed facts confirm that Plaintiff was not fired under circumstances giving rise to an inference of discrimination. Grady, 130 F.3d at 560; Cooper, 2001 WL 868003, at *6.
Assuming, arguendo, that Plaintiff can somehow demonstrate that he was terminated under circumstances which give rise to an inference of discrimination, Defendants have a legitimate, non-discriminatory reason for Plaintiffs termination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Plaintiffs termination was a result of a customer complaint regarding Plaintiffs behavior. (Zarda Dep. pg. 235:17-22, 172:13-18, 243:11-14, 227:4-15, 227-228:23-7, 281:21-24).
A customer complaint is a legitimate business reason for terminating Plaintiff. See Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) (holding plaintiff was terminated for legitimate business reasons because plaintiff had poor performance and received multiple customer complaints); Hayes v. Cablevision Sys. New York City Corp., 2012 WL 1106850, at *15 (E.D.N.Y. Mar. 31, 2012) (holding customer complaints and written reprimands were sufficient to show a legitimate business reason for plaintiffs termination). Defendant SDLI is first and foremost a customer service business, in which the highest priority is customer safety and the second is ensuring an enjoyable experience. (Zarda Dep. pg. 140-141:18-6; Winstock Dep. pg. 91:20-22). On June 18,2010, Plaintiff was unable to provide Defendants' customer with an enjoyable experience. (Zarda Dep. pg. 201-202:24-4;
19

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 25 of 31 PageID #: 1307
Orellana Dep. pg. 49:3-5, 100-101:25-2). Instead, Kengle and Orellana were placed in an uncomfortable position because Plaintiff put his hands on Orellana's hips, rested his chin on her shoulder, and disclosed intimate details of his personal life. (Orellana Dep. pg. 47:5-13; 48:1518, 49:3-5, 89:10-20, 100-101:25-2; Kengle Dep. pg. 23-24:22-5, 62-63:20-3, 66:15-18). As a result, Orellana and Kengle had a dissatisfactory experience and called SDLI to lodge a complaint. (Maynard Dep. pg. 179:14-22, 180:2-14; Kengle Dep. pg. 31:13-15, 35:13-15). This alone is the reason Plaintiff was terminated. (Zarda Dep. pg. 40:6; 218:20-21,235:17-22, 172:1318, 243:11-14, 227:4-15, 227-228:23-7, 281:21-24; Maynard Dep. pg. 282:3). In terminating Plaintiff, Defendant made a business decision to eliminate an employee who failed to provide the customer with one of the core goals of skydiving- an enjoyable experience. This decision was based on SDLI's desire to pleas~ its customer base, not Plaintiffs sexual orientation. Even Plaintiff admits that the customer's complaint regarding his behavior is unrelated to his sexual orientation. (Zarda Dep. pg. 360: 14-17). As Plaintiff is the only instructor which Maynard has received complaints about in his twenty years at SDLI, Maynard properly responded to the complaint with immediate and unbiased corrective action. (Maynard Dep. pg. 66:8-21, 69:9-14, 297:11-21). Parenthetically, this was not the first incidence in which a customer complained about Plaintiff during a jump; Plaintiff received a prior customer complaint in 2001. (Zarda Dep. pg. 57:10-19, 216-217:20-6, 285:11-16). In terminating Plaintiff, Maynard simply eliminated an employee who, on at least two (2) occasions, failed to provide satisfactory customer service. Therefore, Plaintiff was terminated for a legitimate, non-discriminatory reason and his claim for sexual orientation discrimination must be~ dismissed.
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Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 26 of 31 PageID #: 1308
2. Hostile Work Environment To the extent Plaintiff claims sexual orientation discrimination predicated upon the existence of a hostile work environment, any such claim is legally deficient and must be dismissed as a matter of law. Again, to establish a viable hostile work environment claim, Plaintiff must allege conduct that is "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998) (internal citations omitted). Plaintiff must demonstrate that the conduct was intimidating, hostile, or offensive. Id. "[A] reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it." Id. "Isolated incidents of discriminatory comments or conduct is not sufficient to establish a hostile work environment." Viruet v. Citizen Advice Bureau, 2002 WL 1880731 (S.D.N.Y. Aug. 15, 2002); see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (" 'simple teasing,' ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." '). Plaintiff cannot produce evidence sufficient to state a claim of hostile work environment based on his sexual orientation. Plaintiffs sexual orientation came up frequently when he worked at SDLI, as Plaintiff freely discussed it with his peers. (Zarda Dep. pg. 48:2-23). The other skydive instructors would occasionally engage in what Plaintiff referred to as "gay banter," including calling Plaintiff by the nickname "gay Don." (Zarda Dep. pg. 49:6-15, 270-271 :5-4). While these comments regarding Plaintiffs sexual orientation were made around the work place, there is no evidence indicating these comments were sufficiently severe or pervasive to alter the conditions of his work environment or were unwelcome. Rather, testimony indicates that the other skydivers would occasionally comment on Plaintiffs sexual orientation in a fun, joking
21

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 27 of 31 PageID #: 1309
manner. (Zarda Dep. pg. 51:21-25, 239-240:24-15, 270-271 :5-4). Importantly, Plaintiff also partook in the "gay banter," referring to himself as "gay Don" and making jokes about being "gay Don." (Maynard Dep. pg. 137:14-20). This "banter" was no different from what the other skydivers experienced at SDLI, as skydivers enjoy teasing each other. (Zarda Dep. pg. 342:6-16). The light-hearted joking, which Plaintiff participated in, regarding Plaintiffs sexual orientation is not hostile or abusive, and did not alter his work environment. See Gallagher, 139 F.3d at 34647; Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (holding teasing, offhand comments, and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment). Moreover, Plaintiff concedes he did not find the comments made by his peers regarding his sexual orientation to be offensive. (Zarda Dep. pg. 51:21-25, 239:17-23, 239-240:24-15). A hostile work environment cannot exist if Plaintiff does not find the alleged comments to be subjectively offensive. Gallagher, 139 F. 3d at 346-347. Consequently, as Plaintiff admitted he was not offended by the comments of his peers, he cannot maintain a claim for sexual orientation discrimination based on hostile work environment. C. Plaintiff has Withdrawn his Minimum Wage and Overtime Claim Under the FLSA
Consistent with Plaintiffs letter to the Court of December 4, 2012 (ECF Doc. No.: 106 (Def. Ex. 10)), Plaintiff has withdrawn all claims under the FLSA. To the extent Plaintiff has not withdrawn these claims, Defendants expressly reserve the right to brief this matter before Your Honor. D. Plaintiff's Minimum Wage Claim Under NYLL Fails as a Matter of Law
New York Labor Law requires employers to pay their employees the minimum wage for all hours worked. See N.Y. Lab. Law § 652 (McKinney 2012). An employer may fulfill their obligation to pay the employee minimum wage by paying them on a piece rate basis. N.Y. Lab.
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Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 28 of 31 PageID #: 1310
Law§ 190; 12 N.Y.C.R.R. § 142-2.16. Pursuant to New York Codes Rules and Regulations § 142-2.16, when an employee is paid on piece-work basis, his regular hourly wage rate shall be determined by dividing the total hours worked during the week into the employee's earnings.
Plaintiff was, at all times, paid at least the minimum wage during his employment with Defendants. Plaintiff was compensated on a "piece-work" basis, being paid on a per-jump basis rather than by the hour. (Zarda Dep. pg. 301-302:23-8, 309:11-16; Winstock Dep. pg. 61 :2-7). Plaintiffs regular hourly wage can be calculated based his allegation that he worked approximately twelve (12) hours per day, the number of days he completed jumps per week, and his weekly earnings. (See Def. Ex. 5, 6, and 7). Due to weather, there are some days in which Plaintiff did not work at SDLI. (Winstock Dep. pg. 61 :11-17; Callanan Dep. pg. 57:10-12, Zarda Dep. pg. 293 :4-22). Those days are reflected on his jump log as days in which he performed no jumps. (Def. Ex. 5 and 6). Additionally, when there was downtime, such as when the weather was poor or there were no scheduled customers, Plaintiff was permitted to leave SDLI. (Zarda Dep. pg. 293:4-22; Maynard Dep. pg. 306-307:22-2; Callanan Dep. pg. 59:17-20). Plaintiff is not entitled to be paid minimum wage for days in which he did not work and time where he was not required to be on the premises. See N.Y. Lab. Law§ 652 (McKinney 2012).
Accordingly, for the years 2009 and 2010, Plaintiffs regular wage ranged from $12.50 to $30.83 per hour.4 This amount exceeds the $7.25 (or $7.15 in 2009) per hour minimum wage mandated in New York. As such, Plaintiff was compensated at a rate exceeding the minimum
4 Plaintiffs hourly rate was calculated by dividing his earning for each week by the number of hours worked that week. Plaintiffs weekly earnings are contained in Defendants' Exhibit 5. Plaintiffs hours per week were calculated based on Plaintiffs allegation he worked twelve (12) hours per day and multiplying that by the number of days in which he performed jumps each week. For example, for the week of May 18, 2009 to May 24, 2009, Plaintiff earned $1,510. Plaintiff jumped seven (7) days that week and thus worked 80 hours that week. This results in an hourly wage of$18.88 (1510/80 = $18.875). The full list of calculations is attached to the Declaration of Saul D. Zabell as Defendants' Exhibit 9.
23

Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 29 of 31 PageID #: 1311
wage for each week in which he worked at SDLI. Therefore, there exists no issue of fact and Plaintiffs claim for minimum wage under the New York Labor Law must be dismissed. E. Overtime under NYLL
Primarily, Plaintiffs claim must be dismissed because he did not work more than forty (40) hours per week requiring the payment of overtime by Defendants. While Plaintiff claims that he often worked seven (7) days per week, the evidence confirms that Plaintiff rarely worked more than five (5) days per week. (Def. Ex. 5 and 6). Additionally, Plaintiff alleges he worked twelve (12) hour days, however, the evidence demonstrates that Plaintiff did not actually do so. On days when Plaintiff worked, there was often down time, either due to weather or a lack of customers. (Winstock Dep. pg. 61:11-17; Callanan Dep. pg. 57:10-12, Zarda Dep. pg. 293:4-22).. During such occasions, Plaintiff was free to leave the premises to go home or run errands. (Maynard Dep. pg. 306-307:22-2; Callanan Dep. pg. 59:17-20). However, instead of utilizing this time off, Plaintiff chose to remain at SDLI's facility, as it was more "convenient" for him. (Zarda Dep. pg. 293:4-22, 293:9-22, 293-294:23-7, 319:11-20, 322:11-16). As Plaintiff did not work during this down time, Plaintiff is not entitled to be paid for these hours. Given that Plaintiff was not required to be on-premises at all times during the day, (Maynard Dep. pg. 306307:22-2; Callanan Dep. pg. 59:17-20), Plaintiff could not have worked twelve (12) hour days at SDLI. As such, Plaintiff did not work overtime, and is not entitled to any overtime pay under the law.
Even if Plaintiff did work in excess of forty hours (40) per week, he received all overtime pay to which he was entitled under the law. Under the New York Labor Law ("NYLL"), employees who are subject to an exemption under the Fair Labor Stand~ds Act ("FLSA") must only receive an overtime rate at one and one-half the basic minimum hourly rate. 12 NYCRR
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Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 30 of 31 PageID #: 1312
§ 142-2.2. This is true even if their normal rate exceeds the statutory overtime rate. See Edwards v. Jet Blue Airways Corp., 21 Misc. 3d 11 07(A) (Sup. Ct. 2008) (holding defendant complied with 12 NYCRR § 142-2.2 because, as an exempt employee, plaintiff was only entitled to reduced overtime rate and plaintiff was paid his regular rate, which was greater than one and one-half times the basic minimum hourly rate). Skydiving is a seasonal sport, operating from approximately March to November each year. (Zarda Dep. pg. 286:4-14, 316:13-16). As a seasonal recreational business, SDLI qualifies for the FLSA exemption afforded to seasonal amusement or recreational establishments.5 Plaintiff is therefore exempt under the FLSA, and must only be paid overtime at a rate of one and one half the minimum wage under NYLL. See 29 U.S.C. § 213(a)(3); 12 NYCRR § 142-2.2. The minimum wage in 2009 was $7.15 per hour, requiring an overtime rate of $10.73. (Def. Ex. 8). The minimum wage rate in New York for 2010 was $7.25, which requires an overtime rate of $10.88. (Def. Ex. 8).
Pursuant to the calculations of Plaintiffs earnings each week in 2009 and 2010, Plaintiff received more than the required overtime rate every week in which he worked. Plaintiff consistently earned more than $10.73 per hour in 2009 and $10.88 in 2010. (Def. Exs. 5, 6, 7, and 8). Accordingly, Plaintiff was paid overtime for all hours worked and this claim caimot withstand Defendants' motion for summary judgment.
5 To qualify for the seasonal exemption under the FLSA, the establishment must meet the 33 1/3 %test, wherein the monthly average based on total receipts for the six individual months in which the receipts were smallest should 33 1/3 % or less of the monthly average for six individual months when the receipts were largest. 29 U.S.C. § 213(a)(3)(b). In 2009, the gross receipts of the slowest six months was 12.14% of the gross receipts of the busiest six months. (See Def. Ex. 2). In 2010, the gross receipts of the slowest six months was 17.44% of the gross receipts of the busiest six months. (See Def. Ex. 3). Therefore, SDLI qualifies for the seasonal exemption under the FLSA.
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Case 2:10-cv-04334-JFB-AYS Document 109 Filed 02/11/13 Page 31 of 31 PageID #: 1313
V. CONCLUSION For all the foregoing reasons, this Court should grant Defendants' Fed. R. Civ. P. 56 Motion for Summary Judgment and dismiss this action in its entirety with prejudice. Dated: Bohemia, New York February 11, 2013
ZABELL & ASSOCIATES, P Attorneys for Detel'tt1Ll1~
' sq. riner, Esq. Associates, P.C. orate Drive, Suite 103 emia, New York 11716 Tel.: (631) 589-7242 Fax: (631) 563-7475 szabell@laborlawsny.cmn
26

 
 Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 1 of 21 PageID #: 1314

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
DONALD ZARDA, Plaintiff,
- againstALTITUDE EXPRESS, INC. d/b/a SKYDIVE LONG ISLAND and RAY MAYNARD,
Defendants.

Case No.: CV-10-4334 (JFB)(ARL)
DEFENDANTS' RULE 56.1 STATEMENT OF MATERIAL FACTS

Pursuant to Rule 56.1 of the Local Civil Rules of this Court, Defendants Altitude

Express, Inc. d/b/a Skydive Long Island and Ray Maynard (collectively "Defendants")

submit herewith their statement of material facts which are not in dispute:

Background Information:

1.

Altitude Express, Inc. d/b/a Skydive Long Island (hereinafter "SDLI") is a

domestic business corporation operating under the laws of the State ofNew York.

(New York State Department of State Entity Information for Altitude Express,

Inc., Defendants Exhibit 1).

2.

Ray Maynard (hereinafter "Maynard") is the owner and chief executive

officer ofSDLI. (Maynard Dep. pg. 10:7-9; Def. Ex. 1).

3.

Maynard has been skydiving for over forty (40) years. (Maynard Dep. pg.

11:9).

4.

Skydiving is a seasonal sport, as such, the skydiving season runs from

approximately March to November each year. (Zarda Dep. pg. 286:4-14, 316:13-

16). Skydiving can only be performed in good weather: "the sky must be clear,

you must have visibility of three statute miles, you must be 500 feet below clouds,

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 2 of 21 PageID #: 1315

there must be 1,000 feet above the clouds, and 2,000 feet separation .from the

clouds to be able to jump." (Zarda Dep. pg. 288:9-14). Additionally, skydivers

cannot "jump from planes while it's raining." (Zarda Dep. pg. 288:2-4).

5.

In 2009, SDLI's average gross receipts for the slowest six months are less

than 33 1/3 % of the average gross receipts for the busiest six months. (SDLI's

Gross Receipts for 2009 (Defendants Exhibit 2)).

6.

In 2010, SDLI's average gross receipts for the slowest six months are less

than 33 1/3 % of the average gross receipts for the busiest six months. (SDLI's

Gross Receipts for 2010 (Defendants Exhibit 3)).

7.

A typical skydive takes between ten (10) and twenty (20) minutes to

complete. (Zarda Dep. pg. 317:20-25). However, a tandem skydive generally

takes anywhere from 15 to 20 minutes. (Zarda Dep. pg. 318:20-22).

8.

The first priority for the instructor on a tandem jump is safety, the next is

making the jump enjoyable for the customer. (Zarda Dep. pg. 140-141:18-6;

Winstock Dep. pg. 91 :20-22).

9.

While the airplane is loud, the instructors "can hear each other speak, it's

not deafening." (Winstock Dep. pg. 50:22-24).

10.

Often jokes are made during the skydive to loosen the tension. (Maynard

Dep. pg. 35:2-14, 38:13-18; Winstock Dep. pg. 30:9-12, 31:3-15).

11.

These jokes are made to make the situation less tense, "the calmer a

passenger is to exiting, generally the safer the skydive will be." (Winstock Dep.

pg. 30: 16-22).

2

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 3 of 21 PageID #: 1316

Plaintiff's Background Information

12.

Plaintiff Donald Zarda (hereinafter "Zarda" or "Plaintiff') resides tn

Richmond, Missouri. (Zarda Dep. pg. 129:11-12).

13.

In 2001, Zarda was an openly gay man, who "came out" sometime

between 1999 and 2000. (Zarda Dep. pg. 54:7-12).

14.

However, prior to "coming out", Zarda had relationships with women.

(Zarda Dep. pg. 54:18).

15.

Zarda was first hired by SDLI in the summer of 2001. (Zarda Dep. pg.

56:2-3).

16.

Mr. Maynard, the ultimate decision maker, was the person who made the

decision to hire Zarda. (Zarda Dep. pg. 56:19-20).

17.

During his employment with SDLI, Zarda's sexuality "was known" by

everyone who worked at SDLI, including Mr. Maynard. (Zarda Dep. pg. 62-63:8-

14; Winstock Dep. pg. 18:5-7). Mr. Maynard was aware of Zarda's sexual

orientation prior to his hire in 2001, as Zarda disclosed it to Mr. Maynard the first

time they met. (Zarda Dep. pg. 78:11-17; Maynard Dep. pg. 135:17-20; Winstock

Dep. pg. 18:5-7).

18.

After working most of the skydiving season in 2001, Zarda was then

terminated from SDLI in September, because of a customer complaint. (Zarda

Dep. pg. 57:10-19, 216-217:20-6, 285:11-16).

Activities at SDLI

19.

After not working at SDLI for several years, at the end of the skydive

season in 2008, Zarda stopped by the drop zone at SDLI to discuss the possibility

3

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 4 of 21 PageID #: 1317

ofhis returning to work at SDLI in 2009. (Zarda Dep. pg. 60-61:12-13; Maynard

Dep. pg. 148:24).

20.

As a result of these discussions, Maynard decided to re-hire Zarda to work

at SDLI for the 2009 summer season (Zarda Dep. pg. 58-59:22-6), as Zarda was a

good instructor, a safe instructor, and "a good guy." (Maynard Dep. pg. 149:9-

12).

21.

Like in 2001, Maynard was fully aware of Zarda' s sexual orientation when

he made the decision to re-hire Zarda. (Zarda Dep. pg. 78:18-22; Winstock Dep.

pg. 101:1 0-12).

22.

During the 2009 season at SDLI, Zarda enjoyed working with his co-

workers and had a "great relationship" with everyone at SDLI. (Zarda Dep. pg.

72-73 :24-6).

23.

However, on July 2, 2009, Zarda fractured his ankle during a landing with

a tandem passenger, bringing his jumping season to an early close. (Zarda Dep.

pg. 73:7-18, 75:6-22; Maynard Dep. pg. 150:12; Callanan Dep. pg. 44:17-20).

24.

After fracturing his ankle, Zarda was put into a cast. (Zarda Dep. pg.

73:19-21). Zarda then showed up at SDLI in a cast. (Winstock Dep. pg. 35:16-20;

Callanan Dep. pg. 46:23-24, 47:10-13).

25.

Upon noticing the cast, Maynard requested Zarda put a sock over his foot.

(Zarda Dep. pg. 347:12-18).

26.

Maynard requested the cast be covered up as he did not "appreciate

anyone being at the drop zone in a cast and on crutches. The students are nervous

enough and if they see someone on crutches with a cast on, it's not going to be

4

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 5 of 21 PageID #: 1318

very good for the customers." (Maynard Dep. pg. 160-161:24-9; Winstock Dep.

pg. 96-97:15-14). This request was not specific to Zarda, as Maynard did not

"want anybody, if possible, to be there on crutches in a cast." (Maynard Dep. pg.

162:17-18).

27.

As a result of his injury,-Zarda could not work the remainder of the 2009

season. However, Maynard allowed Zarda to return for the 2010 season, after

getting healthy. (Zarda Dep. pg. 76:22-25, 77:17-22; Maynard Dep. pg. 155-

156:23-6, 165:15-18).

28.

Like in 2001 and 2009, Maynard was fully aware of Zarda's sexual

orientation when he allowed him to return to work at SDLI for the 2010 season.

(Zarda Dep. pg. 79:2-6).

29.

After taking the remainder of the 2009 season off, Zarda returned to work

at SDLI on May 15,2010. (Zarda Dep. pg. 78:4-6).

30.

During his time at SDLI, Zarda behaved like every other employee in his

daily mannerisms, he could not be distinguished from his co-workers based on his

actions. Zarda admits that he acted normally, was "just like everybody else," and

"didn't do anything special" that would distinguish him from his co-workers.

(Zarda Dep. pg. 79-80:16-17).

31.

Zarda is admittedly masculine in both appearance and actions. (Zarda Dep.

pg 121-122:16-6, 365:3-10, 116:21-25, 364:21-23). As an individual who works

out frequently and stays in shape (Zarda Dep. pg 87:20-21, 89:10), Zarda has an

"athletic" appearance, which he admits often leads others to believe he is

heterosexual. (Zarda Dep. pg. 121-122:16-6, 365:3-10). Zarda admits that he does

5

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not "look like a lot of gay people might look." (Zarda Dep. pg. 121:7-8). Zarda

also acts masculine, not feminine. (Zarda Dep. pg. 116:21-25, 364:21-23).

32.

While masculine in appearance, Zarda would occasionally wear a pink

baseball cap during work at SDLI to protect his head from the sun. (Zarda Dep.

pg. 120:4-14, 125-126:22-7).

3 3.

While Zarda claims that his pink cap was viewed as a "feminine thing", he

admits that heterosexual men also occasionally wear pink articles of clothing.

(Zarda Dep. pg. 120:15-17, 126-127:13-4).

34.

Zarda asserts that some employees of SDLI would comment on his pink

cap, however when asked, he could not identify any individuals who allegedly

made comments, or what comments were made about the cap. (Zarda Dep. pg.

120-121 :4-9).

35.

Additionally, Zarda failed to identify Maynard, his boss and the decision

maker at SDLI, as one of the individuals who allegedly made comments about his

pink cap. (Zarda Dep. pg. 120-128). Nor was Maynard ever heard making

comments about Zarda's pink clothing. (Winstock Dep. pg. 36:9-11).

36.

Despite the fact that Zarda claims comments were made about his pink

cap, Zarda admits that he "wasn't offended" by any comments made about his

cap. (Zarda Dep. pg. 122:15-19).

3 7.

Zarda admits that his sexual orientation came up "all the time" at SDLI; it

was "routine and so ordinary" for it to come up at work. (Zarda Dep. pg. 48:2-23).

However, Zarda was not offended when his sexual orientation was brought up.

(ZardaDep. pg. 51:21-25, 239-240:24-15).

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38.

Zarda was open and notorious about his sexual orientation; he even had

the nickname "gay Don" at SDLI. (Zarda Dep. pg. 49:6-15). Zarda "referred to

himself as gay Don" and made jokes about being "gay Don." (Maynard Dep. pg.

137:14-20). In fact, Winstock was introduced to Zarda as "gay Don." (Winstock

Dep. pg. 25:9-12).

39.

Zarda's co-workers would sometimes engage in what he referred to as

"gay banter" or "gay fun", saying things like "easy with gay Don." (Zarda Dep.

pg. 270-271 :5-4).

40.

However, Zarda concedes he "wasn't offended" when his co-workers

referred to him as "gay Don" or engaged in "gay banter", because they did not

intend it to be malicious or derogatory. (Zarda Dep. pg. 51 :21-25). Zarda

concedes that no one at SDLI made "gay jokes" to Zarda out of malice. Zarda

doesn't believe anyone at SDLI was being malicious toward him when bringing

up his sexuality. (Zarda Dep. pg. 239-240:24-15).

41.

Zarda is admittedly not offended by jokes about his sexual orientation, as

long as the intention is good. (Zarda Dep. pg. 239:17-23).

42.

Furthermore, it is common for Skydivers to pick on each other; all of the

instructors at SDLl got picked on. (Zarda Dep. pg. 342:6-16).

43.

Zarda concedes he was treated just like everyone else at SDLI; he was not

treated differently, or picked on more, because of his sexual orientation. (Zarda

Dep. pg. 341:10-15, 343:8-16; Winstock Dep. pg. 87:6-9, 97:22-25).

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44.

Rather, Zarda enjoyed positive working relationships with all his co-

workers during his employment at SDLI in 2009 and 2010. (Zarda Dep. pg.

81:12-16, 82:6-9).

45.

If any problems arose at SDLI, Zarda could have brought them to the

attention of Rich Winstock, the Chief Instructor (hereinafter "Winstock"), or Mr.

Maynard. (Zarda Dep. pg. 101:7-16; Winstock Dep. pg. 89:20-23).

46.

Zarda felt comfortable speaking to Winstock about his problems, enough

so that he disclosed a personal problem to Winstock in 2009. (Zarda Dep. pg.

102:18-23, 103 :9-17).

47.

However, Zarda admittedly "didn't make any complaints to the owner,

[Maynard], or [Winstock] about" about any gender or sexual orientation

discrimination. (Zarda Dep. pg. 335:7-11, 101-102:22-9.

48.

The only complaint Zarda made about SDLI was an oral complaint to

Winstock, informing him that he had been suspended. (Winstock Dep. pg. 90:9-

18).

The Jump in Question:

49.

On June 18, 2010, David Kengle (hereinafter "Kengle") brought his

girlfriend, Rosana Orellana (hereinafter "Orellana"), to SDLI for a tandem

skydive for her birthday. (Zarda Dep. pg. 201-202:24-4).

50.

Zarda was the assigned instructor on the tandem jump with Orellana.

(Zarda Dep. pg. 201-202:24-7).

51.

During the skydive, Kengle and Orellana were in close proximity to their

respective instructors. (Kengle Dep. pg. 18:13-18; Orellana Dep. pg. 43:13-18,

8

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100:17-22). Orellana sat in front and Zarda sat directly behind her. (Orellana Dep.

pg. 43:13-18). Kengle was also sitting in front of his instructor. (Kengle Dep. pg.

17:17, 23-25). Zarda then attached Orellana's harness to his harness. (Orellana

Dep. pg. 41:12-20).

52.

Orellana was not bothered by the close proximity to Zarda. (Orellana Dep.

pg. 100:17-22).

53.

During the plane ride up, a joke was made to Kengle by another instructor

on the plane, stating: "how do you feel about your girlfriend being strapped to

another man." (Zarda Dep. pg. 201-202:7-12; Orellana Dep. pg. 44:10-17; Kengle

Dep. pg. 19:18-23).

54.

Both Orellana and Kengle laughed at the joke made by the instructor

(Orellana Dep. pg. 45:5-6), as it was funny and they can both "take a joke."

(Orellana Dep. pg. 58:21-23; Kengle Dep. pg. 43:10).

55.

This type of joke is made often by the skydiving instructors during a

tandem jump. (Zarda Dep. pg. 202:13-18). Customers are not usually bothered

when this joke is made. (Zarda Dep. pg. 206-207:21-4).

56.

During the plane ride, sometime prior to the jump, Orellana believed

Zarda was touching her inappropriately. She noticed that "[h]e had his hand on

[her] hip" and was "resting his chin on [her] shoulder." (Orellana Dep. pg. 47:5-

13; 48:15-18, 89:10-20). This contact made her uncomfortable during the jump.

(Orellana Dep. pg. 100-101:25-2). During this time, Zarda also "leaned forward to

give [Orellana] instructions ... in her ear." (Zarda Dep. pg. 230-231 :21-7).

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Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 10 of 21 PageID #: 1323

57.

Kengle also noticed Zarda touching Orellana inappropriately in the plane.

He observed Zarda putting his "hands on her hips" for practically the entire plane

ride. (Kengle Dep. pg. 19-20:24-7,22:2-4,23:4-12, 23:16-24, 27:14-23).

58.

Kengle observed that no other instructor, including his own instructor, was

touching their customer in the same manner Zarda was touching Orellana.

(Kengle Dep. pg. 23-24:22-5, 62-63:20-3, 66: 15-18). Kengle felt uncomfortable

with the behavior he observed from Zarda based on his observations of the other

instructors. (Kengle Dep. pg. 23-24:22-5, 27:2-9, 62-63:20-3, 66:15-18).

59.

While touching the customer's hips is required at some point during the

tandem jump, it does not require the instructor to touch the customer

inappropriately. (Zarda Dep. pg. 173:3-6).

60.

Then, "[a]t some point during the jump, [Zarda] sensed that [Orellana]

was uncomfortable." (Zarda Dep. pg. 174-175:22-6, 173:12-14).

61.

After pulling the parachute (Orellana Dep. pg. 50:11-18), in an attempt to

allay Orellana's discomfort, Zarda disclosed his sexual orientation to Orellana.

(Zarda Dep. pg. 139-140:22-8, 173:15-19; 228-229:2-10). He told her: "I hope I

didn't make you feel uncomfortable on the plane, I'm gay," that he "had recently

broken up with his boyfriend." (Orellana Dep. pg. 50:14-18).

62.

It was only after Zarda noticed Orellana's discomfort with the jump that

he disclosed this information to Orellana. (Zarda Dep. pg. 176:6-9, 177:14-16).

63.

Orellana felt uncomfortable after Zarda disclosed this information to her.

(Orellana Dep. pg. 52:2-7, 54:11-19, 55:6-9). It made her uncomfortable because

she "wanted to learn about the scenery," and "wanted him to speak about what

10

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 11 of 21 PageID #: 1324

I
was going on around" them during the jump. She did not "want to hear about his personal life" during the jump. (Orellana Dep. pg. 52:2-7, 54:11-19, 55:6-9). She wanted information about her tandem jump instead. (Orellana Dep. pg. 52:2-7, 100:4-10).

64.

Orellana felt that Zarda's conduct, putting his hands on her hips and his

chin on her shoulder during the jump, had crossed the line. Orellana Dep. pg.

60:4-8. She felt that'"he should have been more professional" in his interactions

with her. (Orellana Dep. pg. 49:3-5).

65.

In her opinion, Zarda's actions ruined the jump for Orellana. (Orellana

Dep. pg. 54:20-21, 60:6-8).

66.

Kengle also felt the overall expenence had been tainted because of

Zarda's actions. (Kengle Dep. pg. 31 :11-12).

67.

After leaving SDLI, Orellana told Kengle that she would have liked the

experience better if she had a different instructor. (Kengle Dep. pg. 30:8-9).

The Complaint

68.

After thinking over the aforementioned events, on about Monday, June 21,

2010, Kengle called the SDLI office to lodge a complaint about Zarda' s behavior

on the jump with Orellana. (Maynard Dep. pg. 179:14-22, 180:2-14; Kengle Dep.

pg. 31:13-15).

69.

Kengle believed a complaint was warranted because Zarda's actions were

"inappropriate." (Kengle Dep. pg. 35:13-15).

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70.

When he called SDLI, Kengle spoke to Lauren Callanan (hereinafter

"Callanan"), who "took [his] story and let [him] know she would pass the

information along." (Kengle Dep. pg. 31 :15-17; Callanan Dep. pg. 33:21-22).

71.

Callanan relayed to Maynard that a customer complained, and provided

him with Kengle's name and phone number. (Maynard Dep. pg. 181:2-3).

72.

Maynard then contacted Kengle later that day, telling Kengle "that he was

very unhappy" with what Kengle and Orellana experienced during their skydive.

(Kengle Dep. pg. 31:9-16).

73.

During their phone conversation, Kengle complained to Maynard about

what he and Orellana believed to be inappropriate touching by Zarda during the

skydive. (Zarda Dep. pg. 156:16-23; Orellana Dep. pg. 69:11-13; Maynard Dep.

pg. 181-182:16-12).

74.

Kengle expressed to Maynard "his disappointment" in the company and

with what the tandem master, Zarda, did during their jump. (Maynard Dep. pg.

181:16). Kengle explained that the skydive "was a present for [Orellana's]

birthday and that her birthday was completely ruined" because of Zarda's

behavior, and that he would never recommend SDLI in the future because of it.

(Maynard Dep. pg. 181:21-23; Callanan Dep. pg. 33-34:24-4).

75.

Kengle explained to Maynard that, during the jump, Zarda had his hands

on Orellana's hips, put his head on her shoulder, and whispered in her ear, which

made her feel very uncomfortable during the jump. (Maynard Dep. pg. 182:6-17;

Callanan Dep. pg. 34:7-12). He also explained that Zarda tried to justify his

behavior by telling her that he was gay. (Maynard Dep. pg. 182:6-17; Callanan

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Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 13 of 21 PageID #: 1326

Dep. pg. 34:7-12) He told Maynard that Orellana was upset that Zarda discussed

his personal life with her. (Maynard Dep. pg. 182-183:22-8, 289:11-15; Callanan

Dep. pg. 34:7-12).

76.

In response to Kengle's complaint, Maynard offered to refund the money

Kengle paid for the skydives and accompanying video. (Kengle Dep. pg. 32:9-

16). Kengle did not request the refund, Mr. Maynard insisted on it. (Kengle Dep.

pg. 33:19-22).

77.

In the course of investigating this complaint from Kengle, Maynard did

not speak to Orellana, (Maynard Dep. pg. 185:11-13) nor did he speak to the other

individuals present on the plane. (Maynard Dep. pg. 199:7-16). However,

Maynard did review the video of Zarda' s jump with Orellana. (Maynard Dep. pg.

199: 17-22).

78.

In his twenty plus years at the helm of SDLI and the successful

completion of thousands of tandem jumps, no one ha~ complained to Maynard

about any instructor, other than the complaints made against Zarda by Kengle and

the customer complaint in 2001. (Maynard Dep. pg. 66:8-21, 69:9-14, 297:11-21).

The only complaints Maynard received about his skydiving instructors were about

Zarda. (Maynard Dep. pg. 69:9-14; Winstock Dep. pg. 19:10-13).

The Suspension and Termination

79.

On the Monday following the July 18, 2010 jump with Orellana, Maynard

had a conversation with Zarda regarding the jump, in the course of his

investigation of the complaint. (Zarda Dep. pg. 36:10-12, 37:7-14, 39:15-17;

Maynard Dep. pg. 183:15-21).

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Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 14 of 21 PageID #: 1327

80.

During the conversation, Maynard questioned Zarda as to whether he

remembered the jump with Rosanna Orellana on June 18, 2010. (Zarda Dep. pg.

36: 19-25). Zarda responded that he did not remember the specific jump. (Zarda

Dep. pg. 37:2-5, 362:18-19, 37:8-11). Maynard then told Zarda that he "took a

girl named Rosanna" on a tandem jump that day. (Zarda Dep. pg.). "At that time,

[Zarda] didn't remember anything specific about that jump." (Zarda Dep. pg.

37:15-16).

81.

Maynard then informed Zarda "there were some customers that came out

and jumped, and it was a boyfriend and a girlfriend, and that [he] had taken the

girl, and they had called and made a complaint." (Zarda Dep. pg. 37:15-22;

Maynard Dep. pg. 187:8-22, 196:10-18). Zarda again did not remember anything

about the jump. (Zarda Dep. pg. 38: 3-6).

82.

Maynard informed Zarda that the customer complained about how Zarda

touched her, that he "touched her in a way that made her feel uncomfortable", and

that he touched her inappropriately "at the hips." (Zarda Dep. pg. 43:10-13, 44:3).

Maynard explained that Zarda made Orellana feel "very uncomfortable with the

way he was touching her on her legs, the way he was putting his head on her

shoulder" and that she was "very uncomfortable for the entire jump" and his

actions even led her to believe Zarda "was hitting on her". (Maynard Dep. pg.

196:1 0-18).

83.

Admittedly, this is not a complaint about Zarda's sexual orientation.

(Zarda Dep. pg. 360:14-17).

14

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84.

Maynard also questioned Zarda whether "anything about [his] sexual

orientation came up" during the jump, and Zarda responded that he did not know.

(Zarda Dep. pg. 38:8-10). He then told Maynard "that that comes up all the time

around here," as it is often joked about at the drop zone by the SDLI staff. (Zarda

Dep. pg. 38:12-15).

85.

Maynard then informed Zarda that the customers also complained that Mr.

Zarda discussed his sexual orientation with the customer during the jump. (Zarda

Dep. pg. 40:2-4). Which, Zarda only did after realizing Orellana was

uncomfortable with what occurred during the jump. (Zarda Dep. pg. 176:6-9,

177:14-16).

86.

Due to the nature of a tandem jump, discussing the instructor's sexual

orientation is not recommended during a jump. (Winstock Dep. pg. 95:5-9). As

"that pre-jump phase is one of building trust, ...there's better ways to build

trust." (Winstock Dep. pg. 95:11-15).

87.

Following this conversation, Maynard .suspended Zarda for a week

without pay. (Zarda Dep. pg. 40:6).

88.

Zarda's suspension had "nothing to do with him being gay." (Maynard

Dep. pg. 189:4-5) Rather, it was a function of the customer's complaint regarding

Zarda's behavior. (Maynard Dep. pg. 187:18-22, 196:10-18).

89.

After this discussion with Maynard, Zarda "sought Winstock's counsel" to

discuss the events that had just occurred. (Zarda Dep. pg. 35:11-22, 207-208:16-

6). In response, Winstock notified Zarda he would discuss the matter with

Maynard. (Zarda Dep. pg. 208:6-1 0).

15

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90.

After his one-week suspension, Maynard terminated Zarda, based on the

complaint from Kengle. (Zarda Dep. pg. 218:20-21, Maynard Dep. pg. 282:3).

91.

The· termination conversation between Maynard and Zarda was tape-

recorded by Zarda. (Maynard Dep. pg. 221:2-25).

92.

During the termination conversation, in response to Zarda' s inquiry

regarding his sexual orientation, Maynard informed him "[i]t wasn't a gay issue.

It was a personal issue ... Because if it was a heterosexual thing -- if Ritchie

Winstock was telling some chick of his escapades, he would be in the same

situation. It's not about gay. It's about your personal life, talking to people about

it ... I don't care what you do and I don't care what those guys do, but what I do

care about is that it's not shared with my customers." (Maynard Dep. pg. 226:3-

16). "It's not a gay thing. It's about your personal escapades and what you're

telling people." (Maynard Dep. pg. 226:19-22).

93.

During the termination meeting, Maynard and Zarda discussed Kengle' s

complaint. They discussed the fact that Orellana felt Zarda touched her

inappropriately, which made her uncomfortable. (Maynard Dep. pg. 227:8-10).

Maynard explained that Kengle was upset because Orellana's birthday was ruined

because Zarda touched her inappropriately on the hips (Maynard Dep. pg. 247: 14-

15), put his head on her shoulder, was whispering in her ear, and telling her

"Don't worry about me, I'm gay." (Maynard Dep. pg. 229:3-21).

94.

Despite his contention that he could not have touched Orellana

inappropriately because of his sexual orientation (Zarda Dep. pg. 43:17-22),

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Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 17 of 21 PageID #: 1330

Zarda admits that a homosexual man can touch a woman inappropriately. (Zarda

Dep. pg. 228:13-15).

95.

Zarda testified that Maynard terminated him because Kengle and Orellana

complained about the conduct that occurred on their jump. (Zarda Dep. pg.

235:17-22). Zarda explained that Maynard terminated him because the customers

accused him of inappropriately touching a "female passenger in a way that made

her feel uncomfortable" and "because the issue of [his] sexuality came up in front

of the customers." (Zarda Dep. pg. 172:13-18, 243:11-14, 227:4-15, 227-228:23-

7, 281:21-24).

96.

However, contradictorily, Plaintiff testifies repeatedly that he believes the

reason he was terminated is because of his sexual orientation. (Zarda Dep., pg.

116:9-12, 134:12-15,215:8,278-279:11-2, 281:21-24).

97.

If an instructor does something to make a customer uncomfortable, the

instructor is responsible for damaging the customer's skydive experience.

(Winstock Dep. pg. 92-93:22-4). It is not inappropriate to discipline an employee

because of a customer complaint. (Winstock Dep. pg. 93 :5-8).

Wage Facts

98.

At SDLI, there was no schedule of hours, rather the instructors were

"expected to show up at work at a specific time ...and were expected to stay until

work was complete." (Zarda Dep. pg. 291:15-20).

99.

On the weekends the employees are expected "to be there at 7:30 because

we try to get wheels up by 8 o'clock." On the weekdays the employees are

17

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expected "to be there at 9:30 to have wheels up by 10 o'clock." (Maynard Dep.

pg. 306:6-10; Callanan Dep. pg. 59:5-10).

100.

During any one day, "Skydiving goes on typically all the way until

one half hour before sunset." (Zarda Dep. pg. 301 :5-9).

101.

However the workday can end at different times depending "on the day

and how much business" SDLI has. (Maynard Dep. pg. 306:14-15).

102.

There are days when there is bad weather and no one is required to show

up to SDLI. (Winstock Dep. pg. 61 :11-17; Callanan Dep. pg. 57:10-12).

103.

However, when there was downtime, such as when the weather was bad or

there were no scheduled customers, the instructors were permitted to leave SDLl.

(Zarda Dep. pg. 293 :4-22).

104.

In such a situation, the skydivers "don't have to be at the drop zone. They

can go home. They can go do what they have to do, but they need to be available

if there is- if work is in." (Maynard Dep. pg. 306-307:22-2; Callanan Dep. pg.

59:17-20).

105.

Typically, the instructors should "be within 20 to 30 minutes" from SDLI

when there are weather delays. (Maynard Dep. pg. 309:4-5; Callanan Dep. pg.

61 :13-22).

106.

However, in those instances when the instructors could leave, Zarda chose

not to leave SDLI because it was "more convenient." (Zarda Dep. pg. 293:4-22).

Zarda testified that for him, "once [he] made the trip out there, [he] would stay

from where [he] came from ... For some people that live out there ...they could

kind of come and go ... but it didn't really work out for [him] that way." (Zarda

18

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 19 of 21 PageID #: 1332

Dep. pg. 293:9-22). Because Zarda lived "a little bit of a distance" away, it was

less convenient for him to "drive all the way back to Coram and then come all the

way back to" SDLI. (Zarda Dep. pg. 293-294:23-7, 319:11-20, 322:11-16).

107.

While working at SDLI, Zar~a agreed to be compensated on a piecemeal

basis, receiving $40.00 for each tandem jump performed. (Zarda Dep. pg. 301-

302:23-8, 309: 11-16; Winstock Dep. pg. 61 :2-7). Instructors can also earn $50 per

jump for training tandems, $55 per jump for advanced free fall, and $59 per jump

for video jumps. (Winstock Dep. pg. 61 :2-7).

108.

Zarda, and other employees, were paid on a W-2 basis, receiving a weekly

paycheck from SDLI. (Winstock Dep. pg. 60:20-23). Paychecks at SDLI were

issued the week after the wages were earned. (Zarda Paycheck 06/27/10

(Defendants Exhibit 4)).

109.

For the week of May 11, 2009 to May 17, 2009, Zarda worked two days,

jumping ten (1 0) times, and earning $410.00. (SDLI Jump Log for 2009

(Defendants Exhibit 5); Employee Earnings Record from 111/09 to 12/31/10 for

Donald Zarda (Defendants Exhibit 7)).

110.

For the week of May 18, 2009 to May 24, 2009, Zarda worked seven (7)

days, jumping 37 times, and earning $1510.00. (Def. Ex. 5; Def. Ex. 7).

111.

For the week of May 25, 2009 to May 31, 2009, Zarda worked three (3)

days, jumping 29 times, and earning $1,215.00. (Def. Ex. 5; Def. Ex. 7).

112.

For the week of June 1, 2009 to June 7, 2009, Zarda worked five (5) days,

jumping 35 times, and earning $1,400.00. (Def. Ex. 5; Def. Ex. 7).

19

Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 20 of 21 PageID #: 1333

113.

For the week of June 8, 2009 to June 14, 2009, Zarda worked four (4)

days, jumping 16 times, and earning $640.00. (Def. Ex. 5; Def. Ex. 7).

114.

For the week of June 15, 2009 to June 21, 2009, Zarda worked five (5)

days, jumping 27 times, and earning $1,112.00. (Def. Ex. 5; Def. Ex. 7).

115.

For the week of June 22, 2009 to June 28, 2009, Zarda worked four (4)

days, jumping 37 times, and earning $1360.00. (Def. Ex. 5; Def. Ex. 7).

116.

For the week of June 29, 2009 to July 5, 2009, Zarda worked two (2) days,

jumping 9 times, and earning $370.00. (Def. Ex. 5; Def. Ex. 7).

117.

For the week of May 10, 2010 to May 16~ 2010, Zarda worked two (2)

days, jumping 19 times, and earning $760.00. (SDLI Jump Log for 2010,

(Defendants Exhibit 6); Def. Ex. 7).

118.

For the week of May 17,2010 to May 23,2010, Zarda worked four (4)

days, jumping 20 times, and earning $600.00. (Def. Ex. 6; Def. Ex. 7).

119.

For the week of May 24, 2010 to May 30, 2010, Zarda worked six (6)

days, jumping 30 times, and earning $992.00. (Def. Ex. 6; Def. Ex. 7).

120.

For the week of May 31, 201 0 to June 6, 2010, Zarda worked five (5)

days, jumping 34 times, and earning $1,150. 00. (Def. Ex. 6; Def. Ex. 7).

121.

For the week of June 7, 2010 to June 13, 2010, Zarda worked six (6) days,

jumping 21 times, and earning $811.00. (Def. Ex. 6; Def. Ex. 7).

122.

For the week of June 14, 2010 to June 20, 2010, Zarda worked three (3)

days, jumping 35 times, and earning at least $772.00. (Def. Ex. 6; Def. Ex. 7).

123.

For the week of June 21, 2010 to June 27, 2010, Zarda worked one (1)

day, jumping 9 times, and earning $370.00. (Def. Ex. 6; Def. Ex. 7).

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Case 2:10-cv-04334-JFB-AYS Document 110 Filed 02/11/13 Page 21 of 21 PageID #: 1334

124.

Zarda "liked being able to make good money" skydiving, as the skydiving

"instructors make pretty good money in that short amount of time." (Zarda Dep.

pg. 209-210:24-5).

125.

For the period of January 1, 2007 to July 23, 2009, the minimum wage in

the State ofNew York was $7.15 per hour. (New York State Department of Labor

History of the Hourly Minimum Wage (Def. Ex. 8)).

126.

For the period of July 24, 2009 to the present, the minimum wage in the

State of New York was $7.25 per hour. (Def. Ex. 8).

127.

Plaintiff withdraws all claims for minimum wage and overtime under the

FLSA. (ECF Doc. No. 106 (Defendants' Exhibit 10)).

Dated: Bohemia, New York February 11, 2013

ZABELL & ASSOCIATE
Attorneys for Detert"d-fJl~~

21

 
 Case 2:10-cv-04334-JFB-AYS Document 122 Filed 04/07/13 Page 1 of 38 PageID #: 2439

UNITED	  STATES	  DISTRICT	  COURT	  

	  

	  

EASTERN	  DISTRICT	  OF	  NEW	  YORK	  	   	  

	  

PLAINTIFF’S	  COUNTER	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	   	  

56.1	  STATEMENT	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

DONALD	  ZARDA,	   	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

10	  Civ	  4334	  (JFB)	   	  

	  

Plaintiff,	   	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

ALTITUDE	  EXPRESS,	  INC.,	  	  

dba	  Skydive	  Long	  Island,	  and	  RAY	  MAYNARD,	  	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

	  

Defendants.	  

	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	   	  

Plaintiff responds to defendants’ Local Rule 56.1(a) statement and makes such

affirmative statements under Local Rule 56.1(b) as to place many misrepresentations and

omissions in context:

1. Altitude Express, Inc. d/b/a Skydive Long Island (hereinafter “SDLI”) is a domestic

business corporation operating under the laws of the State of New York. (New York State

Department of State Entity Information for Altitude Express, Inc., Defendants Exhibit 1 ).

Admitted.

2. Ray Maynard (hereinafter “Maynard”) is the owner and chief executive officer of

SDLI. (Maynard Dep. pg. 10:7-9; Def. Ex. 1).

Admitted upon information and belief.

3. Maynard has been skydiving for over forty (40) years. (Maynard Dep. pg. 11:9).

Admitted however pursuant to local rule 56(b), plaintiff avers that Maynard

admits that he has less experience diving than Zarda. Maynard Dep. 249:10-11.

4. Skydiving is a seasonal sport, as such, the skydiving season runs from approximately

March to November each year. (Zarda Dep. pg. 286:4-14, 316:13-16). Skydiving can

only be performed in good weather: “the sky must be clear, you must have visibility of

	  

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three statute miles, you must be 500 feet below clouds, there must be 1,000 feet above the clouds, and 2,000 feet separation .from the clouds to be able to jump.” (Zarda Dep. pg. 288:914). Additionally, skydivers cannot “jump from planes while it's raining.” (Zarda Dep. pg. 288:2-4).
Admitted. 5. In 2009, SDLI's average gross receipts for the slowest six months are less than 33 1/3 % of the average gross receipts for the busiest six months. (SDLI's Gross Receipts for 2009 (Defendants Exhibit 2)).
This immaterial allegation is admitted upon information and belief. 6. In 2010, SDLI's average gross receipts for the slowest six months are less than 33 1/3 % of the average gross receipts for the busiest six months. (SDLI's Gross Receipts for 2010 (Defendants Exhibit 3)).
This immaterial allegation is admitted upon information and belief. 7. A typical skydive takes between ten (10) and twenty (20) minutes to complete. (Zarda Dep. pg. 317:20-25). However, a tandem skydive generally takes anywhere from 15 to 20 minutes. (Zarda Dep. pg. 318:20-22).
Admitted. 8. The first priority for the instructor on a tandem jump is safety, the next is making the jump enjoyable for the customer. (Zarda Dep. pg. 140-141:18-6; Winstock Dep. pg. 91 :20-22).
Admitted. 9. While the airplane is loud, the instructors “can hear each other speak, it's not deafening.” (Winstock Dep. pg. 50:22-24).
Admitted but averred that once people are in free fall in the air, “You	  can't	  even	  
speak,”	  the	  only	  way	  to	  communicate	  is	  through	  “hand	  signals.”	  Id.	  at	  50-­51.	  	  

	  

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10. Often jokes are made during the skydive to loosen the tension. (Maynard Dep. pg. 35:214, 38:13-18; Winstock Dep. pg. 30:9-12, 31:3-15).
Admitted, and averred that the jokes are sometimes obscene, bawdy and sexual in nature. Maynard dep. 34:21-35:14. 11. These jokes are made to make the situation less tense, “the calmer a passenger is to exiting, generally the safer the skydive will be.” (Winstock Dep. pg. 30: 16-22).
Admitted, but it is averred that the sexual jokes permitted at SDLI can cause embarrassment and discomfort. Zarda Dec. at ¶¶ 12, 22. 12. Plaintiff Donald Zarda (hereinafter “Zarda” or “Plaintiff') resides in Richmond, Missouri. (Zarda Dep. pg. 129:11-12).
Admitted that at the time the lawsuit was filed and at his deposition he lived in Richmond, Missouri but now lives in Texas. See Zarda Dec. at p.6, n.1. 13. In 2001, Zarda was an openly gay man, who “came out” sometime between 1999 and 2000. (Zarda Dep. pg. 54:7-12).
Admitted. 14. However, prior to “coming out”, Zarda had relationships with women. (Zarda Dep. pg. 54:18).
Denied: “relationship” is undefined on page 54 and defendant is attempting to characterize these “relationships” with women as romantic when Zarda specifically denied that they were. Zarda Dep. 54:21 – 55:8 15. Zarda was first hired by SDLI in the summer of 2001. (Zarda Dep. pg. 56:2-3).
Admitted, though it might have been spring when the season starts. 16. Mr. Maynard, the ultimate decision maker, was the person who made the decision to hire Zarda. (Zarda Dep. pg. 56:19-20).

	  

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Admitted. 17. During his employment with SDLI, Zarda' s sexuality “was known” by everyone who worked at SDLI, including Mr. Maynard. (Zarda Dep. pg. 62-63:8-14; Winstock Dep. pg. 18:5-7). Mr. Maynard was aware of Zarda's sexual orientation prior to his hire in 2001, as Zarda disclosed it to Mr. Maynard the first time they met. (Zarda Dep. pg. 78:11-17; Maynard Dep. pg. 135:17-20; Winstock Dep. pg. 18:5-7).
Denied except admitted that at some point during 2001, many, though perhaps not all, employees at SDLI figured out that plaintiff is gay, even though plaintiff did not tell them. Zarda dep. 63:3-14. There is no way of knowing whether “everyone” knew and, indeed, people usually mistake plaintiff as straight. Zarda Dep. at 126-27. Plaintiff denies that he told Maynard that he is gay prior to his having been hired in 2001. Zarda Dec. at ¶ 6. 18. After working most of the skydiving season in 2001, Zarda was then terminated from SDLI in September, because of a customer complaint. (Zarda Dep. pg. 57:10-19, 216217:20-6, 285:11-16).
Admitted that plaintiff was fired because a customer complained that Don would not do an unsafe maneuver, Zarda Dec. at ¶ 7, which Maynard admitted would not be a legitimate basis for termination, Maynard Dep. 144-45, as well as a violation of state law. See Labor Law § 740. 19. After not working at SDLI for several years, at the end of the skydive season in 2008, Zarda stopped by the drop zone at SDLI to discuss the possibility of his returning to work at SDLI in 2009. (Zarda Dep. pg. 60-61:12-13; Maynard Dep. pg. 148:24).
Admitted. 20. As a result of these discussions, Maynard decided to re-hire Zarda to work at SDLI

	  

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for the 2009 summer season (Zarda Dep. pg. 58-59:22-6), as Zarda was a good instructor, a safe instructor, and “a good guy.” (Maynard Dep. pg. 149:9-12).
Characterization denied. Maynard knew that Zarda was a good instructor, a safe instructor, and a good guy; it had nothing to do with the “discussions.” Maynard Dep. pg. 149:9-12. 21. Like in 2001, Maynard was fully aware of Zarda' s sexual orientation when he made the decision to re-hire Zarda. (Zarda Dep. pg. 78:18-22; Winstock Dep. pg. 101:1 0-12).
Denied in part. Plaintiff was known to be gay during the season in 2001, but Maynard did not know he was gay when he hired Zarda, because Zarda did not tell him. Zarda Dec. at ¶ 6. 22. During the 2009 season at SDLI, Zarda enjoyed working with his coworkers and had a “great relationship” with everyone at SDLI. (Zarda Dep. pg. 72-73 :24-6).
Admitted. 23. However, on July 2, 2009, Zarda fractured his ankle during a landing with a tandem passenger, bringing his jumping season to an early close. (Zarda Dep. pg. 73:7-18, 75:622; Maynard Dep. pg. 150:12; Callanan Dep. pg. 44:17-20). 24. After fracturing his ankle, Zarda was put into a cast. (Zarda Dep. pg. 73:19-21). Zarda then showed up at SDLI in a cast. (Winstock Dep. pg. 35:16-20; Callanan Dep. pg. 46:23-24, 47:10-13).
Admitted that plaintiff, non-negligently suffered an accident, Maynard dep. at 150, 152, and showed up at the drop zone because of a “mandatory staff meeting” that Maynard asked him to show up to. Maynard Dep. at 156-57, 159 and Zarda Dec., Exhibit B. 25. Upon noticing the cast, Maynard requested Zarda put a sock over his foot. (Zarda

	  

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Dep. pg. 347:12-18). Denied but admitted that Maynard saw pink toenails while the two were
near a coke machine after plaintiff had his cast removed, and Maynard said, “That’s gay,” in a derisive, nasty tone. Zarda dep. at 347, dec. at 18. Earlier in the season, he ask Zarda to paint his cast or leave a staff meeting. Id. at ¶ 17. If you see the cast attached as Exhibit A to the Zarda Dec., you see that there are few socks available that could cover it. 26. Maynard requested the cast be covered up as he did not “appreciate anyone being at the drop zone in a cast and on crutches. The students are nervous enough and if they see someone on crutches with a cast on, it's not going to be very good for the customers.”
(Maynard Dep. pg. 160-161:24-9; Winstock Dep. pg. 96-97:15-14). This request was not specific to Zarda, as Maynard did not “want anybody, if possible, to be there on crutches in a cast.” (Maynard Dep. pg. 162:17-18).
Denied. There were many times that workers showed up at the dropzone in crutches and casts; and, further, why would Maynard not make Zarda go home if he were to be at the drop zone on crutches, even if he were wearing a cast, which would not
be hidden as a result of a sock covering it. The request had nothing to do with as if his being on crutches with a black cast would have fooled anyone. Zarda Dec. at ¶ 17. Additionally, a woman named Tara, girlfriend of a dropzone employee, broke her back on a tandem jump and was allowed on the drop zone on crutches. Id.
27. As a result of his injury, Zarda could not work the remainder of the 2009 season. However, Maynard allowed Zarda to return for the 2010 season, after getting healthy. (Zarda

	  

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Dep. pg. 76:22-25, 77:17-22; Maynard Dep. pg. 155-156:23-6, 165:15-18). Admitted that Maynard is “always looking for workers,” Maynard dep. at 301
and rehired Don for the following season. 28. Like in 2001 and 2009, Maynard was fully aware of Zarda's sexual orientation when he allowed him to return to work at SDLI for the 2010 season. (Zarda Dep. pg. 79:2-6).
Admitted that Maynard probably had not forgotten about Zarda’s sexual orientation in the proceeding year, and at least was reminded of it when he fired him for telling as customer he is gay. 29. After taking the remainder of the 2009 season off, Zarda returned to work at SDLI on May 15, 2010. (Zarda Dep. pg. 78:4-6).
Admitted. 30. During his time at SDLI, Zarda behaved like every other employee in his daily mannerisms, he could not be distinguished from his co-workers based on his actions. Zarda admits that he acted normally, was “just like everybody else,” and didn't do anything special” that would distinguish him from his co-workers. (Zarda Dep. pg. 79-80:16-17).
Admitted. 31. Zarda is admittedly masculine in both appearance and actions. (Zarda Dep. pg 121122:16-6, 365:3-10, 116:21-25, 364:21-23). As an individual who works out frequently and stays in shape (Zarda Dep. pg 87:20-21, 89:10), Zarda has an “athletic” appearance, which he admits often leads others to believe he is heterosexual. (Zarda Dep. pg. 121-122:16-6, 365:310). Zarda admits that he does not “look like a lot of gay people might look.” (Zarda Dep. pg. 121:7-8). Zarda also acts masculine, not feminine. (Zarda Dep. pg. 116:21-25, 364:21-23).
Admitted.

	  

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32. While masculine in appearance, Zarda would occasionally wear a pink baseball cap during work at SDLI to protect his head from the sun. (Zarda Dep. pg. 120:4-14, 125126:22-7).
Denied insofar as plaintiff almost always wore his pink cap in the sun and he testified it was viewed as feminine. Zarda dep. at 120. 33. While Zarda claims that his pink cap was viewed as a “feminine thing”, he admits that heterosexual men also occasionally wear pink articles of clothing. (Zarda Dep. pg. 120:15-17, 126-127:13-4).
Admitted that the pink cap was seen as feminine, but denied that the second part of the allegation is often true. In fact, it is rare to see a heterosexual man wear pink. Zarda Dec. at ¶ 15. The portion quoted, Zarda dep. 126-27, refers to plaintiff’s statement, “as long as I don’t have any accessories on, that might lead people … to ask me if I am gay.” This does not support the proposition stated. 34. Zarda asserts that some employees of SDLI would comment on his pink cap, however when asked, he could not identify any individuals who allegedly made comments, or what comments were made about the cap. (Zarda Dep. pg. 120-121:4-9).
Denied. Plaintiff said “everyone commented on it.” Zarda Dep. pg. 120121:4. 35. Additionally, Zarda failed to identify Maynard, his boss and the decision maker at SDLI, as one of the individuals who allegedly made comments about his pink cap. (Zarda Dep. pg. 120-128). Nor was Maynard ever heard making comments about Zarda's pink clothing. (Winstock Dep. pg. 36:9-11).
Denied, “everyone commented on it at one point,” Zarda Dep. at 120-121:4,

	  

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ipso facto Maynard commented. Plaintiff denies information as to what Winstock
heard Maynard saying, but plaintiff did hear Maynard making derogatory
comments about his pink clothing and toenails. Zarda Dec. at ¶¶ 17-18.
36. Despite the fact that Zarda claims comments were made about his pink cap, Zarda
admits that he “wasn't offended” by any comments made about his cap. (Zarda Dep. pg.
122:15-19).
Denied. Plaintiff wasn’t offended when “people at work . . . would say, hey
nice pink hat,” but when Maynard derisively referred to his pink cast as “gay” and
made him cover it up, he was offended. Zarda Dec. ¶¶ 17, 18.
37. Zarda admits that his sexual orientation came up “all the time” at SDLI; it was
“routine and so ordinary” for it to come up at work. (Zarda Dep. pg. 48:2-23).
However, Zarda was not offended when his sexual orientation was brought up.
(Zarda Dep. pg. 51:21-25, 239-240:24-15).
Denied. Defendants continually misquote the depositions. Plaintiff testified
that he was not offended when Winstock referred to him as “Gay Don” at his [i.e.
Winstock’s] deposition, Zarda Dep. at 51:21-25. Furthermore, Zarda said the
following about people speaking about his sexuality at work in an attempt to hurt
his feelings:
“In an attempt to hurt my feelings, I can’t remember specifics. I don’t think so. Like we just talked about, some borderline stuff. I think that an attempt to hurt my feelings would imply malice and so that the person was wanting to be malicious, and so I don’t think anybody there was wanting to be malicious to me so they might have done it in error or ignorance, possibly, not knowing what to one was being malicious about it. say or how to say something; yeah, in that regard possibly but not – I don’t think anybody was being malicious about it.” Zarda Dep. at 240 (emphasis added).
38. Zarda was open and notorious about his sexual orientation; he even had the nickname

	  

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“gay Don” at SDLI. (Zarda Dep. pg. 49:6-15). Zarda “referred to himself as Gay Don” and made jokes about being “gay Don.” (Maynard Dep. pg.137:14-20). In fact, Winstock was introduced to Zarda as “gay Don.” (Winstock Dep. pg. 25:9-12).
Admitted that plaintiff was open about his sexuality. “Notorious” means infamous, disreputable and dishonorable and is a pejorative, derogatory, bigoted word and demonstrates the defendants’ position. Plaintiff admits that at least Maynard considered Zarda notorious about his sexuality. Denied that plaintiff referred to himself as “Gay Don.” The passage cited, 137-14-20 says nothing whatsoever about the nickname that was foisted upon him. See Zarda dep. 137:14-20. Further, plaintiff does not recall whether someone other than himself introduced him to Winstock as “Gay Don,” but whether or not it happened, it was not to plaintiff’s liking or choice. Zarda Dec. at ¶ 8. 39. Zarda's co-workers would sometimes engage in what he referred to as “gay banter” or “gay fun”, saying things like “easy with gay Don.” (Zarda Dep. pg. 270-271:5-4).
Admitted that all of the employees were culpable of engaging in “gay banter or “gay fun.” Denied that the fun was plaintiff’s, and averred that it was at his expense. Again, he did not choose the name “Gay Don.” Zarda Dec. at ¶ 12-14. 40. However, Zarda concedes he “wasn't offended” when his co-workers referred to him as “gay Don” or engaged in “gay banter”, because they did not intend it to be malicious or derogatory. (Zarda Dep. pg. 51 :21-25). Zarda concedes that no one at SDLI made “gay jokes” to Zarda out of malice. Zarda doesn't believe anyone at SDLI was being malicious toward him when bringing up his sexuality. (Zarda Dep. pg. 239-240:24-15).
Denied that plaintiff wasn’t offended by it; to an extent he was, Zarda dep. at 240, but has a thick skin and wanted not to create tension in the workplace. He did, however, in 2009 have a talk with his employees to tone down the gay jokes. Zarda Dec.

	  

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at ¶ 13. Admitted that the employees were not being malicious. 41. Zarda is admittedly not offended by jokes about his sexual orientation, as long as the intention is good. (Zarda Dep. pg. 239:17-23).
Admitted. 42. Furthermore, it is common for Skydivers to pick on each other; all of the instructors at SDLl got picked on. (Zarda Dep. pg. 342:6-16).
Admitted. 43. Zarda concedes he was treated just like everyone else at SDLI; he was not treated differently, or picked on more, because of his sexual orientation. (Zarda Dep. pg. 341:10-15, 343:8-16; Winstock Dep. pg. 87:6-9, 97:22-25).
Denied. Plaintiff admits as he testified to, i.e., that “for the most part,” 34243, he was treated as others. “Most part” means at least more than half of the time. Zabell tried again and again at the deposition to get plaintiff to commit to a yes or no that he “was treated like everyone else,” but failed to obtain that admission. Id. Now, having failed to get his admission, he dishonestly foists it upon the court here, as in countless other examples. 44. Rather, Zarda enjoyed positive working relationships with all his coworkers during his employment at SDLI in 2009 and 2010. (Zarda Dep. pg. 81:12-16, 82:6-9).
Plaintiff does not understand the use of the word “rather,” in this context, but admitted only as plaintiff testified, that “for the most part” he had positive working relationships at the dropzone. 45. If any problems arose at SDLI, Zarda could have brought them to the attention of Rich Winstock, the Chief Instructor (hereinafter “Winstock”), or Mr. Maynard. (Zarda Dep. pg. 101:7-16; Winstock Dep. pg. 89:20-23).

	  

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Admitted, and insofar as plaintiff was suspended, had his pay docked, he did; though it did no good, because despite Winstock’s interventions, he was unable to prevent Don’s termination. (Winstock’s Dep., pg. 84.) 46. Zarda felt comfortable speaking to Winstock about his problems, enough so that he disclosed a personal problem to Winstock in 2009. (Zarda Dep. pg. 102:18-23, 103 :917).
Denied insofar as the testimony cited does not stand for the proposition stated, Zarda Dep. pg. 102:18-23, 103:9-17, and that the personal problem referred to, the death of a cat, plaintiff testified he did not recall speaking to Winstock about. Zarda dep. 104:2-8. This is another example of Zabell’s blatant misconstruction of the evidence. Despite this, plaintiff avers that plaintiff gets along with Winstock, and vice versa, and they both think Ray is unethical and that plaintiff’s termination was wrong. Zarda Dec. at p12., n2, Exhibit E; Winstock dep. at 24 (Winstock strongly recommends a written reprimand) and 83 (Winstock doesn’t know what the reprimand would be for, but at least it would have saved Zarda’s job). 47. However, Zarda admittedly “didn't make any complaints to the owner, [Maynard], or [Winstock] about” about any gender or sexual orientation discrimination. (Zarda Dep. pg. 335:7-11, 101-102:22-9.
Denied. See ¶ 48, infra. 48. The only complaint Zarda made about SDLI was an oral complaint to Winstock, informing him that he had been suspended. (Winstock Dep. pg. 90:9- 18).
Admitted. The Jump in Question: 49. On June 18, 2010, David Kengle (hereinafter “Kengle”) brought his girlfriend,

	  

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Rosana Orellana (hereinafter “Orellana”), to SDLI for a tandem skydive for her birthday. (Zarda Dep. pg. 201-202:24-4).
Plaintiff is not the source of that information, but he has no basis to deny it. 50. Zarda was the assigned instructor on the tandem jump with Orellana. (Zarda Dep. pg. 201-202:24-7).
Admitted. 51. During the skydive, Kengle and Orellana were in close proximity to their respective instructors. (Kengle Dep. pg. 18:13-18; Orellana Dep. pg. 43:13-18, 8; 100:17-22). Orellana sat in front and Zarda sat directly behind her. (Orellana Dep. pg. 43:13-18). Kengle was also sitting in front of his instructor. (Kengle Dep. pg.17:17, 23-25). Zarda then attached Orellana's harness to his harness. (Orellana Dep. pg. 41:12-20).
Admitted. 52. Orellana was not bothered by the close proximity to Zarda. (Orellana Dep. pg. 100:17 -22).
Plaintiff denies knowledge or information and belief as to how Orellana felt or what she wanted or didn’t want. She wanted to go on a skydive, but didn’t read the waiver pertaining to what would happen on the skydive. Orellana Dep. at 36-37, 72. All of the visual evidence taken at the time of the jump, including immediately after the jump, shows she had a fantastic time on the jump. Afterwards, she said it was “awesome” and put her face close to Don’s and posed for a picture with him. Antollino Dec at Exhibit B (videographic and photographic evidence) and Kengle’s jump, id. (hereinafter “contemporary evidence” or CE). She still shows the video to Kengle’s family members. Orellana dep. at 97. She shows no discomfort in the CE,

	  

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but testified she was claustrophobic and backed away from me as I approached her with the video. Orellana dep. 93. She believes in gay marriage, id. at 65, yet testified offended by something much less controversial, a person telling her he is gay, suggesting she is making up the whole thing to support her boyfriend’s complaint. She knows nothing about skydiving, did not read the waiver, id. at 36-37, 72, and thus has no idea what Don was doing in regards to the attachments with regards to her safety. Id. at 41. Therefore, she would have preferred that Don protect her safety even at the expense of her comfort. Id at 80, 98. She didn’t want to make a complaint. Id. She merely made some comments on the way home after the jump, and her boyfriend mulled it over for a day and then called in a complaint. Id at 69. Ray waited two more to discuss the allegations. Zarda Dec. at 28.
53. During the plane ride up, a joke was made to Kengle by another instructor on the plane, stating: “how do you feel about your girlfriend being strapped to another man.” (Zarda Dep. pg. 201-202:7-12; Orellana Dep. pg. 44:10-17; Kengle Dep. pg. 19:18-23).
Admitted that an instructor, not plaintiff, made this “joke.” 54. Both Orellana and Kengle laughed at the joke made by the instructor (Orellana Dep. pg. 45:5-6), as it was funny and they can both “take a joke.” (Orellana Dep. pg. 58:21-23; Kengle Dep. pg. 43:10).
Denied that it is funny, but admitted that the other instructor stated it as a misplaced form of trying to loosen up a tense atmosphere. Maynard dep. at 39-40. Maynard denies that it is a joke but rather a “statement.” Maynard dep. 39-40. Denied that Orellana and Kengle were able to take a joke. Kengle is extremely jealous of other men pursuing her—as he characterized her -- “beautiful” girlfriend.

	  

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Kengle Dep. at 24. Further, plaintiff sensed discomfort when this joke or statement was made, and wanted to remove himself from the insinuation that he was sexually attracted to Rosanna. Zarda Dec. at ¶ 23. 55. This type of joke is made often by the skydiving instructors during a tandem jump. (Zarda Dep. pg. 202:13-18). Customers are not usually bothered when this joke is made. (Zarda Dep. pg. 206-207:21-4).
Denied, insofar as plaintiff specifically testified that Kengle was bothered by the joke, Zarda dep. at 202, but admitted that other customers usually do not get upset. 56. During the plane ride, sometime prior to the jump, Orellana believed Zarda was touching her inappropriately. She noticed that “[h]e had his hand on [her] hip” and was “resting his chin on [her] shoulder.” (Orellana Dep. pg. 47:5- 13; 48:15-18, 89:10-20). This contact made her uncomfortable during the jump.(Orellana Dep. pg. 100-101:25-2). During this time, Zarda also “leaned forward to give [Orellana] instructions ... in her ear.” (Zarda Dep. pg. 230-231 :21-7).
Denied. First, Orellana was on notice close that she would be in close contact with the instructor, signed a release wherein she agreed to be in such close contact. Orellana Dep. at 36-37, 72. That she did not read that waiver is not something to hold Zarda liable for, but Orellana. See Maynard dep. at 31 (customer complaint concerning something happening that is in the waiver is not a valid complaint). Second, an instructor is so close to the passenger that he is invading her space. Winstock Dep. at 82-83. Again, plaintiff does not know what Orellana believes – it is likely she is lying to protect her boyfriend’s integrity - but she signed a statement

	  

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that she agreed to be touched. Id. at 36-37, 72 Third, as a homosexual, he would have no reason or motive to put his hand on her hip in a sexual or inappropriate manner. Zarda Dec. at ¶ 23; yet as Maynard admitted (dep. at 149) he was an good and safe instructor and would have every reason or motive to make sure her safety was protected, and that the hip straps were adjusted appropriately. Maynard dep. at CITE. Fourth, it is a normal place to rest one’s hand while waiting to jump out of a cramped plane. Zarda Dec. at ¶ 24. Fifth, it is loud in the airplane, and the ear is the most natural place to give an instruction, because the instructor is strapped to the passenger. See Maynard dep. at 27-28. Sixth, the instructor must put his face on either shoulder or else the instructor’s teeth or perhaps nose will hit the back of the passenger’s head. Winstock dep. at 50, 55, 81; Maynard dep. at 259. Finally – it is unclear what significance “whisper” has in this lawsuit (whispering “sweet nothings,” perhaps?) but insofar as the instructor is so close, and the noise level high, a statement made at a natural octave might be interpreted as a whisper. Zarda Dec. at ¶ 25. 57. Kengle also noticed Zarda touching Orellana inappropriately in the plane. He observed Zarda putting his “hands on her hips” for practically the entire plane ride. (Kengle Dep. pg. 19-20:24-7,22:2-4,23:4-12, 23:16-24, 27:14-23).
Plaintiff has no idea what Kengle saw, but Kengle said nothing at the time. Kengle Dep. at 24, and did not report the alleged touching for a day. Id. at 31. The documentary evidence shows Kengle had a fantastic time, and after his drop was over he said that was “fucking awesome,” and admitted that he did not look upset. Kengle Dep. at 49. His lay opinion testimony as to whether plaintiff the homosexual

	  

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was trying to make a move on his girlfriend is inadmissible. 58. Kengle observed that no other instructor, including his own instructor, was
touching their customer in the same manner Zarda was touching Orellana. (Kengle Dep. pg. 23-24:22-5, 62-63:20-3, 66: 15-18). Kengle felt uncomfortable with the behavior he observed from Zarda based on his observations of the other instructors. (Kengle Dep. pg. 23-24:22-5, 27:2-9, 62-63:20-3, 66:15-18).
Denied. An instructor must constantly make adjustments to straps at the hips inside the plane and out. Maynard dep. at 27-28. The visual evidence as to what happened in the plane, taken by a constant flashing camera shows simply that the complainants were having an excellent time. Maynard dep. at 323-25. Kengle is very jealous of other men because he believes that Orellana is “beautiful” and they are men are always hitting on her. Kengle dep. at 24; Maynard dep. at 198. Kengle is “very vocal,” but he didn’t say anything at the time, Kengle dep. at 24, and didn’t express any disappointment after the jump when he posed with Don. See final moment of video. He only complained when, coming home from the jump, he learned that Don had told Orellana that he was gay, and a day later made a complaint and got his money back. Maynard Dep. 186-87. If the issue had been so pressing, Maynard might have addressed the issue on the spot, but he didn’t speak to Zarda about it until three days later. Zarda Dec. at ¶ 28. 59. While touching the customer's hips is required at some point during the tandem jump, it does not require the instructor to touch the customer inappropriately. (Zarda Dep. pg. 173:3-6).
Admitted and plaintiff homosexual did not touch Orellana inappropriately,

	  

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and defendants have no evidence that Zarda, the homosexual did anything but “put [his] hands in the location around the hips that's necessary to be able to perform the functions that I am required to do as a tandem instructor.” Zarda dep. at 173. 60. Then, “[a]t some point during the jump, [Zarda] sensed that [Orellana] was uncomfortable.” (Zarda Dep. pg. 174-175:22-6, 173:12-14).
Admitted, and plaintiff believes it was after the tired, “notorious” “joke.” Zarda Dec. at ¶ 21-23. 61. After pulling the parachute (Orellana Dep. pg. 50:11-18), in an attempt to allay Orellana's discomfort, Zarda disclosed his sexual orientation to Orellana. (Zarda Dep. pg. 139-140:22-8, 173:15-19; 228-229:2-10). He told her: “I hope I didn't make you feel uncomfortable on the plane, I'm gay,” that he “had recently broken up with his boyfriend.” (Orellana Dep. pg. 50:14-18).
Admitted, though plaintiff does not recall the statement about breaking up with his boyfriend, and it seems unlikely because it would have been untrue. Zarda Dec. at 23. Plaintiff did this because, in his judgment, it would make the passenger more comfortable, given the “joke” in the plane, id., and Rich Winstock, SDLI’s chief instructor does the same thing, when appropriate, to allay the discomfort of passengers – he tells them that he is married with children. Winstock dep. at 94,109110. 62. It was only after Zarda noticed Orellana's discomfort with the jump that he disclosed this information to Orellana. (Zarda Dep. pg. 176:6-9, 177:14-16).
See response to ¶ 60 incorporated herein. 63. Orellana felt uncomfortable after Zarda disclosed this information to her. (Orellana

	  

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Dep. pg. 52:2-7, 54:11-19, 55:6-9). It made her uncomfortable because she “wanted to learn about the scenery,” and “wanted him to speak about what was going on around” them during the jump. She did not “want to hear about his personal life” during the jump. (Orellana Dep. pg. 52:2-7, 54:11-19, 55:6-9). She wanted information about her tandem jump instead. (Orellana Dep. pg. 52:2-7, 100:4-10).
Admitted this is what she testified to, but denied that, in a ten or fifteen minute jump that she described as “awesome” CE, Antollino Dec. at Exhibit B, and later cozied up to plaintiff, id. at the end, that she did not see any scenery or that she was not told what was going on. Zarda Dec. at ¶ 23. In fact, plaintiff’s talking about the jump and the closeness of their contact was “information about the jump itself.” Id. A one-sentence discussion – even if it took place in the air, which plaintiff remembers differently – could hardly distract from the scenery, Zarda Dec. at ¶ 26, and notwithstanding Orellana’s after-the-fact complaint, Maynard rated the jump at 8 or 9 out of 10, dep. at 280, and Winstock, dep. at 75, rated the jump at 97% and said the landing was outstanding. Id. at 73 64. Orellana felt that Zarda's conduct, putting his hands on her hips and his chin on her shoulder during the jump, had crossed the line. Orellana Dep. pg. 60:4-8. She felt that “he should have been more professional” in his interactions with her. (Orellana Dep. pg. 49:3-5).
Denied, though admitted that she testified to this. As set forth in ¶ 63, Winstock (75) and Maynard (281) gave plaintiff very high grades in the manner in which plaintiff performed in the jump based on the video. Maynard saw not a single unprofessional thing in the pictures the jumpers ordered. Maynard dep. at. 323-25.

	  

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Furthermore, Orellana’s opinion is inadmissible because not only does she not know anything about skydiving, but she didn’t even read the waiver before she went on the jump. Orellana dep. at 29, 36-37, 72. She has no basis whatsoever to evaluate what is or is not professional. 65. In her opinion, Zarda's actions ruined the jump for Orellana. (Orellana Dep. pg. 54:20-21, 60:6-8).
Denied. She said it was “awesome” as soon as she got off and cozied up to plaintiff for a picture. See Orellana dep. at 83; see Orellana video at very end. 66. Kengle also felt the overall experience had been tainted because of Zarda's actions. (Kengle Dep. pg. 31:11-12).
Denied. Just as with Orellana, the CE shows that Kengle was having a great time, and he did not complain for a day, at which time he, an unemployed waiter, dep. at 7, was happy to cash his refund money. So he got an experience that he described as “fucking awesome” completely free. Kengle at 49. Orellana didn’t want to complain. Dep. at 69. 67. After leaving SDLI, Orellana told Kengle that she would have liked the experience better if she had a different instructor. (Kengle Dep. pg. 30:8-9).
Denied. The contemporaneous evidence shows that both of them had a fantastic time, Kengle Dep. at 48, Orellana Dep. at 83, and both Winstock and Maynard evaluated plaintiff’s performance on the jump in superlative terms. Kengle’s statement is hearsay and even if not, Orellana’s opinion is sheer speculation. 68. After thinking over the aforementioned events, on about Monday, June 21, 2010, Kengle called the SDLI office to lodge a complaint about Zarda' s behavior on the jump with Orellana. (Maynard Dep. pg. 179:14-22, 180:2-14; Kengle Dep. pg. 31:13-15).

	  

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Admitted that after stewing over it , Kengle, an unemployed waiter, dep. at 7, devised a way to get a refund. 69. Kengle believed a complaint was warranted because Zarda's actions were “inappropriate.” (Kengle Dep. pg. 35:13-15).
Denied, and it is unclear what “actions” Kengle is talking about. Kengle wanted his money back. He is a thirty-something unemployed waiting who as recently as 2006 was driving a 1988 car on installment plan. Antollino dec. at Exhibit Q (TLO report). This is not to denigrate the unemployed, but let’s be real: Kengle wanted to impress his girlfriend with an expensive gift that he couldn’t afford, because men were always hitting on her; then he devised a way to get his money back by making a nonsensical complaint – that a homosexual was hitting on his girlfriend. Further, he has no qualifications for evaluating plaintiff’s performance, thus they are inadmissible; (2) the contemporaneous evidence shows he was having a wonderful time; and (3) it is as legal and proper to state one is gay in the workplace as it is to say one is Cuban, something that Maynard himself believes. Dep. at 256. Forcing an employee to pretend he is heterosexual is akin to forcing a black person to show up to work in white face. See generally, Kenji Yoshino, Covering. 70. When he called SDLI, Kengle spoke to Lauren Callanan (hereinafter “Callanan”), who “took [his] story and let [him] know she would pass the information along.” (Kengle Dep. pg. 31 :15-17; Callanan Dep. pg. 33:21-22).
This immaterial statement is admitted. 71. Callanan relayed to Maynard that a customer complained, and provided him

	  

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with Kengle's name and phone number. (Maynard Dep. pg. 181:2-3). Denied, and this demonstrates how loose the defendant plays with the facts.
Maynard was not sure which of his employees told him, Maynard dep. at 180, but surely one of them had to. 72. Maynard then contacted Kengle later that day, telling Kengle “that he was very unhappy” with what Kengle and Orellana experienced during their skydive. (Kengle Dep. pg. 31:9-16).
Admitted. 73. During their phone conversation, Kengle complained to Maynard about what he and Orellana believed to be inappropriate touching by Zarda during the skydive. (Zarda Dep. pg. 156:16-23; Orellana Dep. pg. 69:11-13; Maynard Dep. pg. 181-182:16-12).
Denied. Kengle has no qualifications for evaluating plaintiff’s performance, and his opinion is inadmissible; the contemporaneous evidence, Antollino Dec., Exhibit B, Maynard Dep. 325, shows he was having a wonderful time, and Maynard and Winstock believed the jump to show superlative. Maynard rated it 8 or 9 and Winstock 97/100. 74. Kengle expressed to Maynard “his disappointment” in the company and with what the tandem master, Zarda, did during their jump. (Maynard Dep. pg. 181:16). Kengle explained that the skydive “was a present for [Orellana's] birthday and that her birthday was completely ruined” because of Zarda's behavior, and that he would never recommend SDLI in the future because of it. (Maynard Dep. pg. 181:21-23; Callanan Dep. pg. 3334:24-4).
Denied. While he might have stated this days later, the contemporaneous

	  

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evidence shows that they were having a wonderful time during the jump. 75. Kengle explained to Maynard that, during the jump, Zarda had his hands on Orellana's hips, put his head on her shoulder, and whispered in her ear, which made her feel very uncomfortable during the jump. (Maynard Dep. pg. 182:6-17; Callanan Dep. pg. 34:7-12). He also explained that Zarda tried to justify his behavior by telling her that he was gay. (Maynard Dep. pg. 182:6-17; Callanan Dep. pg. 34:7-12) He told Maynard that Orellana was upset that Zarda discussed his personal life with her. (Maynard Dep. pg. 182-183:22-8, 289:11-15; Callanan Dep. pg. 34:7-12).
Denied. Kengle wanted his money back. Further, he has no qualifications for evaluating plaintiff’s performance, which is inadmissible; (2) the contemporaneous evidence shows he was having a wonderful time; and (3) it is legal and proper to state one is gay in the workplace. See Executive Law CITE; Herek, Bauer and Yoshino, supra; Winstock at 109 (discussing personal life where appropriate); Maynard dep. at 254-57 (discussing ethnicity, military status, and familial status at the workplace perfectly ok). Additionally, Maynard’s discussing his marital woes and girlfriend is perfectly appropriate for his Facebook page. Antollino Dec. ¶¶ 7-9. 76. In response to Kengle's complaint, Maynard offered to refund the money Kengle paid for the skydives and accompanying video. (Kengle Dep. pg. 32:9-16). Kengle did not request the refund, Mr. Maynard insisted on it. (Kengle Dep. pg. 33:19-22).
Admitted that Maynard gave them a refund and Kengle greedily took it because, despite that the contemporaneous evidence shows he had a wonderful time. Kengle did not testify that Maynard insisted on anything. (Kengle Dep. pg. 33:1922).

	  

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77. In the course of investigating this complaint from Kengle, Maynard did not speak to Orellana, (Maynard Dep. pg. 185:11-13) nor did he speak to the other individuals present on the plane. (Maynard Dep. pg. 199:7-16). However, Maynard did review the video of Zarda' s jump with Orellana. (Maynard Dep. pg. 199: 17 -22).
Denied that Maynard did any investigation because if all he did was watch the video, that was evidence in plaintiff’s favor to show that Kengle was lying because it shows nothing inappropriate. See Orellana video and photographs. 78. In his twenty plus years at the helm of SDLI and the successful completion of thousands of tandem jumps, no one ha~	  complained to Maynard about any instructor, other than the complaints made against Zarda by Kengle and the customer complaint in 2001. (Maynard Dep. pg. 66:8-21, 69:9-14, 297:11-21). The only complaints Maynard received about his skydiving instructors were about Zarda. (Maynard Dep. pg. 69:9-14; Winstock Dep. pg. 19:10-13).
Denied. There have been numerous complaints about SDLI and its employees. Maynard dep. at 55. See also Antollino Dec. at ¶¶ 6, 11. One of them was similar to the one made by Kengle – Exhibit K the Ripoff Report -- involving improper touching wherein a complainant alleged that the instructors were groping their girlfriends. Maynard in response asked why they didn’t say anything, or call the police. Antollino Dec. ¶ 12, Exhibit K, Maynard’s rebuttal, p 2-3. The Suspension and Termination 79. On the Monday following the July 18, 2010 jump with Orellana, Maynard had a conversation with Zarda regarding the jump, in the course of his investigation of the complaint. (Zarda Dep. pg. 36:10-12, 37:7-14, 39:15-17; Maynard Dep. pg. 183:15-21).
Denied. Maynard did not investigate the complaint. See response to ¶ 77.

	  

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Watching a video that exculpates plaintiff from an allegation is not an investigation. 80. During the conversation, Maynard questioned Zarda as to whether he remembered the jump with Rosanna Orellana on June 18, 2010. (Zarda Dep. pg. 36: 19-25). Zarda responded that he did not remember the specific jump. (Zarda Dep. pg. 37:2-5, 362:1819, 37:8-11). Maynard then told Zarda that he “took a girl named Rosanna” on a tandem jump that day. (Zarda Dep. pg.). “At that time, [Zarda] didn't remember anything specific about that jump.” (Zarda Dep. pg. 37:15-16).
Admitted. Plaintiff asked to see the video to refresh his recollection after thirty customers, but Maynard refused to let him. Maynard dep. at 185; Zarda Dep. at 4. 81. Maynard then informed Zarda “there were some customers that came out and jumped, and it was a boyfriend and a girlfriend, and that [he] had taken the girl, and they had called and made a complaint.” (Zarda Dep. pg. 37:15-22; Maynard Dep. pg. 187:8-22, 196:10-18). Zarda again did not remember anything about the jump. (Zarda Dep. pg. 38: 3-6).
Admitted and in between this meeting and the Rosanna jump, plaintiff had taken up some thirty passengers and would have no reason to remember – especially since the jump was so uneventful and enjoyable for the passengers. Zarda Dec. at ¶ 26-27; Maynard dep. at 323, 325; Orellana video; Kengle video; photographs of the jump. 82. Maynard informed Zarda that the customer complained about how Zarda touched her, that he “touched her in a way that made her feel uncomfortable”, and that he touched her inappropriately “at the hips.” (Zarda Dep. pg. 43:10-13, 44:3). Maynard explained that

	  

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Zarda made Orellana feel “very uncomfortable with the way he was touching her on her legs, the way he was putting his head on her shoulder” and that she was “very uncomfortable for the entire jump” and his actions even led her to believe Zarda “was hitting on her”. (Maynard Dep. pg. 196:10-18).
Denied that the issue of the touching came up first – the sexuality issue came up first, and the touching issue second. Zarda Dec. at ¶ 29, 39, Exhibit D. This is similar to the termination interview, Maynard dep. at 224-32, where the touching is barely mentioned until plaintiff brings it up. Of course the unemployment document does not mention touching at all. Antollino Dec. at ¶ 15, Exh. O. Other than that, it is admitted that this is what was said, in sum and substance, but denied that what was said actually happened. Orellana video; Kengle video; photographs of the jump; Zarda Dec. at ¶¶ 26-27. 83. Admittedly, this is not a complaint about Zarda's sexual orientation. (Zarda Dep. pg. 360:14-17).
Don admits that Kengle’s fear that his girlfriend was being hit on is not a complaint about his sexual orientation. However, Maynard’s invoking this ridiculous complaint without any investigation is reliance on sex stereotyping, and the other complaint – that plaintiff told Orelana that he is gay – demonstrates homosexual bias. Gregory M. Herek, “Why Tell if You are Not Asked?” Self Disclosure, Intergroup Contract, and Heterosexuals' Attitudes Toward Lesbians and Gay Men, in Out in Force: Sexual Orientation and the Military (Gregory M. Herek, Jared B. Jobe, Ralph M. Carney eds. 1996). Bruce Bawer similarly notes: “most heterosexuals are constantly alluding to their personal relationships without

	  

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even realizing it, let alone considering it inappropriate; they only notice it, and consider it inappropriate, when a homosexual does the same thing.” Bruce Bawer, A
Place at the Table: The Gay Individual in American Society (1994). Kengle’s complaint
about homosexual Don’s attempt to hit on his girlfriend is a not in itself a complaint about Zarda’s sexual orientation but it is the pretext that allows Maynard to get rid of plaintiff on the basis of stating his sexual orientation to another customer and offending that customer’s biases. Maynard knew that the touching complaint was a lie. Plaintiff is gay. The video shows no improper touching. Touching is required on the job, and Maynard did not speak to Orellana as to how she was touched and where insofar as to gauge whether it was a form of touching required of the activity. Nowhere in her deposition does she describe how the touch was “inappropriate,” a conclusory term. Maynard knows Zarda is an excellent instructor. Finally, Maynard had the opportunity to invoke the touching allegation to oppose Zarda’s unemployment benefits, something which could increase his premiums. Maynard dep. at 344-45; Antollino Dec Exh. O. In its misconduct opposition to Zarda’s unemployment application, Maynard says nothing about touching, only the very weak complaint about revealing “personal information.” Antollino Dec. Exhibit O. The fact that Maynard did not use the touching allegation to oppose unemployment benefits – when he had the financial motive to invoke such an inflammatory charge – shows he knew it not to be true. Id. 84. Maynard also questioned Zarda whether “anything about [his] sexual orientation came up” during the jump, and Zarda responded that he did not know. (Zarda Dep. pg. 38:8-10). He then told Maynard “that that comes up all the time around here,” as it is often joked about at the drop zone by the SDLI staff. (Zarda Dep. pg. 38:12-15).

	  

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Admitted. 85. Maynard then informed Zarda that the customers also complained that Mr. Zarda discussed his sexual orientation with the customer during the jump. (Zarda Dep. pg. 40:2-4). Which, Zarda only did after realizing Orellana was uncomfortable with what occurred during the jump. (Zarda Dep. pg. 176:6-9,177:14-16).
Admitted. 86. Due to the nature of a tandem jump, discussing the instructor's sexual orientation is not recommended during a jump. (Winstock Dep. pg. 95:5-9). As “that pre-jump phase is one of building trust, ... there's better ways to build trust.” (Winstock Dep. pg. 95:11-15).
Denied. Winstock dep. at 109 (“I personally find that women, female passengers, usually older, when they're extremely nervous, and their mothers, I have to calm down my passenger, especially when they're extremely nervous I have to, otherwise it's a safety issue, and like I said earlier, our job is to land safely, and I want to go home to my three kids. Every passenger is different. . . .[D]o I recommend not bringing [one’s sexuality] up[?] Yes, of course I recommend you don't bring it up, but there are situations where it could benefit you.” Plaintiff did no differently, though the circumstances were different only in that plaintiff said he is gay whereas Winstock made clear he is straight. Zarda Dec. at ¶ 40. 87. Following this conversation, Maynard suspended Zarda for a week without pay. (Zarda Dep. pg. 40:6).
Admitted. 88. Zarda's suspension had “nothing to do with him being gay.” (Maynard Dep. pg. 189:4-5) Rather, it was a function of the customer's complaint regarding Zarda's behavior. (Maynard Dep. pg. 187:18-22, 196:10-18).

	  

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Denied. Maynard’s testimony on this point pertained to whether plaintiff was gay at work or after work, and that talking about his activities and “escapades” after work was inappropriate. Plaintiff is gay all day and the statement merely reflects Maynard’s ignorance that being gay is an “escapade” rather than an immutable condition. Zarda Dec. ¶ 10. 89. After this discussion with Maynard, Zarda “sought Winstock's counsel” to discuss the events that had just occurred. (Zarda Dep. pg. 35:11-22, 207-208:16-6). In response, Winstock notified Zarda he would discuss the matter with Maynard. (Zarda Dep. pg. 208:6-1 0).
Admitted, and during that time, Winstock strongly advocated for plaintiff not to be terminated. Winstock dep. at 84.
90. After his one-week suspension, Maynard terminated Zarda, based on the complaint from Kengle. (Zarda Dep. pg. 218:20-21, Maynard Dep. pg. 282:3).
Denied. Maynard fired plaintiff for telling a customer he is gay. All of the contemporaneous evidence as well as the evidence to unemployment, as well as common sense, shows that Maynard did not believe the touching allegation, but was enraged that he told a customer that he is gay. See ¶¶ 82, 83, supra. 91. The termination conversation between Maynard and Zarda was tape recorded by Zarda. (Maynard Dep. pg. 221:2-25).
Admitted. 92. During the termination conversation, in response to Zarda' s inquiry regarding his sexual orientation, Maynard informed him “[i]t wasn't a gay issue. It was a personal issue ... Because if it was a heterosexual thing -- if Ritchie Winstock was telling some chick of his escapades, he would be in the same situation. It's not about gay. It's about your personal life, talking to people about it ... I don't care what you do and I don't care what

	  

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those guys do, but what I do care about is that it's not shared with my customers.”

(Maynard Dep. pg. 226:3-16). “It's not a gay thing. It's about your personal escapades and

what you're telling people.” (Maynard Dep. pg. 226:19-22).

Admitted, but denied Maynard’s bigoted belief that being gay is an

“escapade.” See Herek and Bauer, ¶ 83. Webster’s defines escapade as “a	  usually	  

adventurous	  action	  that	  runs	  counter	  to	  approved	  or	  conventional	  conduct.”	  To	  

believe	  that	  being	  gay	  is	  an	  escapade	  is	  evidence	  of	  bigotry.	  

93. During the termination meeting, Maynard and Zarda discussed Kengle' s complaint.

They discussed the fact that Orellana felt Zarda touched her inappropriately, which made

her uncomfortable. (Maynard Dep. pg. 227:8-10). Maynard explained that Kengle was

upset because Orellana's birthday was ruined because Zarda touched her inappropriately

on the hips (Maynard Dep. pg. 24 7: 14-15), put his head on her shoulder, was whispering

in her ear, and telling her “Don't worry about me, I'm gay.” (Maynard Dep. pg. 229:3-21).

	  

Admitted	  except	  that	  the	  tape	  says	  nothing	  about	  Orellana’s	  birthday	  

being	  ruined	  “because	  Zarda	  touched	  her	  inappropriately	  on	  the	  hips.”	  

Maynard	  dep.	  at	  229	  (“you	  were	  suspended	  for	  ruining	  somebody's	  birthday	  

because	  of	  you	  talking	  about	  your	  personal	  life	  to	  them.”)	  In	  fact,	  Maynard	  

only	  brings	  up	  the	  touching	  allegation	  when	  Zarda	  reminded	  him	  about	  it.	  Id.	  

at	  227.	  

94. Despite his contention that he could not have touched Orellana inappropriately

because of his sexual orientation (Zarda Dep. pg. 43:17-22), Zarda admits that a

homosexual man can touch a woman inappropriately. (Zarda Dep. pg. 228:13-15).

Defendants certainly have a weak case to allege in a 56.1 statement that a

	  

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homosexual could touch a woman in an inappropriate way and therefore the case should be dismissed. Plaintiffs do not deserve to win this motion solely on the utter unlikelihood that plaintiff, who is 100% gay and has never had a romantic relationship with a woman, would touch Orelana in a sexual nature. Zarda Dec. at ¶ 10. Nevertheless, though highly impossible, it is admitted that anything that does not violate the law of physics is possible. 95. Zarda testified that Maynard terminated him because Kengle and Orellana complained about the conduct that occurred on their jump. (Zarda Dep. pg. 235:17-22). Zarda explained that Maynard terminated him because the customers accused him of inappropriately touching a “female passenger in a way that made her feel uncomfortable” and “because the issue of [his] sexuality came up in front of the customers.” (Zarda Dep. pg. 172:13-18, 243:11-14, 227:4-15, 227-228:23-7, 281:21-24).
Denied. Again, defendants miscontrue testimony. Plaintiff testified that, “I can’t superimpose anything on Mr. Maynard’s thought processes, because they’re rather abstract at times, and they don’t always make sense,” 172:3-6, and clarified himself, “No. Let’s be more specific...” Id at 172:22, and testified that he put his “hands in the location around the hips that’s necessary to be able to perform the functions that I am required to do as a tandem instructor.” 174:15-18, and that Maynard knew it was a lie. See Zarda Dep. at 274, 277-78. 96. However, contradictorily, Plaintiff testifies repeatedly that he believes the reason he was terminated is because of his sexual orientation. (Zarda Dep., pg. 116:9-12, 134:1215,215:8,278-279:11-2, 281:21-24).
Denied it is plaintiff’s contradiction: It was Kengle’s and Maynard’s

	  

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contradiction. Kengle brought up both reasons as complaints against plaintiff to get his refund, and Maynard used both reasons – which essentially cancelled each other out – to terminate plaintiff, though at the termination interview, the touching was barely mentioned. Maynard dep. at 227 (transcription of termination interview wherein plaintiff brings up the touching allegation); see also unemployment misconduct documents, Antollino Dec. at Exhibit O. Inappropriate touching might be a slam-dunk that might disentitle plaintiff from benefits, and therefore Maynard had a financial motive to pursue that allegation. Maynard dep. at 343. But Maynard dropped the touching allegation in the unemployment papers and plaintiff got his benefits. Antollino Dec. at ¶ 16, Exh. P. 97. If an instructor does something to make a customer uncomfortable, the instructor is responsible for damaging the customer's skydive experience. (Winstock Dep. pg. 9293:22-4). It is not inappropriate to discipline an employee because of a customer complaint. (Winstock Dep. pg. 93:5-8).
Denied. Not every complaint is legitimate. Maynard dep. at 20, 22, 31. SDLI even makes the customer sign a waiver that if they die during a jump, SDLI is not responsible, Antollino Dec., exh. A Rosana Waiver; Exhibit B, Maynard Safety video, so how can the skydiver be responsible? Rather, skydiving is an inherently dangerous activity, Maynard dep. at 165, and touching is one thing that the customer specifically signs off on in that waiver. ¶ 13. Furthermore, even insofar as an instructor is responsible for doing a good job in general, if there is a complaint, the complaint must be investigated – as this one was not with the mere exception of viewing exculpatory evidence. Furthermore, there are many levels of discipline, and Winstock – without even knowing what the complaint was about – strongly advocated that plaintiff not be

	  

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fired. Winstock dep. at 84, but Maynard ignored him. Perhaps that’s one reason why Winstock quit SDLI, despite Maynard’s wanting him to stay on, Maynard dep., at 347; Zarda Dec. at Exhibit E, Winstock writing plaintiff that what happened to Zarda was wrong. Wage Facts 98. At SDLI, there was no schedule of hours, rather the instructors were “expected to show up at work at a specific time ... and were expected to stay until work was complete.” (Zarda Dep. pg. 291:15-20).
Denied but admitted in part. Zarda Wage Aff. ¶ 4 (the day started at 9 on weekdays and 7:30 on weekends) and ended when the day was called or sun went down. Id. at ¶¶ 6-7. 99. On the weekends the employees are expected “to be there at 7:30 because we try to get wheels up by 8 o'clock.” On the weekdays the employees are expected “to be there at 9:30 to have wheels up by 10 o'clock.” (Maynard Dep. pg. 306:6-10; Callanan Dep. pg. 59:510).
Admitted. 100. During any one day, “Skydiving goes on typically all the way until one half hour before sunset.” (Zarda Dep. pg. 301 :5-9).
Admitted. 101. However the workday can end at different times depending “on the day and how much business” SDLI has. (Maynard Dep. pg. 306:14-15).
Admitted. 102. There are days when there is bad weather and no one is required to show up to SDLI. (Winstock Dep. pg. 61:11-17; Callanan Dep. pg. 57:10-12).

	  

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Admitted, and it is the employer’s legal obligation to record these events. 103. However, when there was downtime, such as when the weather was bad or there were no scheduled customers, the instructors were permitted to leave SDLI. (Zarda Dep. pg. 293:4-22).
Admitted in part and denied in part, and it is the employer’s legal obligation to record these events. The plaintiff was “on call” for the entire day – not “on call” in the sense that he could be called in for the day. He could never be more than 20-30 minutes away, Maynard dep. at 309, and there was nothing nearby to do within twenty minutes. Plaintiff dep. at 292. 104. In such a situation, the skydivers “don't have to be at the drop zone. They can go home. They can go do what they have to do, but they need to be available if there is if work is in.” (Maynard Dep. pg. 306-307:22-2; Callanan Dep. pg. 59:17-20).
Admitted, and it is the employer’s legal obligation to record these events. 105. Typically, the instructors should “be within 20 to 30 minutes” from SDLI when there are weather delays. (Maynard Dep. pg. 309:4-5; Callanan Dep. pg. 61 :13-22).
Admitted, and it is the employer’s legal obligation to record these events. 106. However, in those instances when the instructors could leave, Zarda chose not to leave SDLI because it was “more convenient.” (Zarda Dep. pg. 293:4-22). Zarda testified that for him, “once [he] made the trip out there, [he] would stay from where [he] came from ... For some people that live out there ... they could kind of come and go ... but it didn't really work out for [him] that way.” (Zarda Dep. pg. 293:9-22). Because Zarda lived “a little bit of a distance” away, it was less convenient for him to “drive all the way back to Coram and
then come all the way back to” SDLI. (Zarda Dep. pg. 293-294:23-7, 319:11-20, 322:1116).

	  

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Admitted. 107. While working at SDLI, Zarda agreed to be compensated on a piecemeal basis, receiving $40.00 for each tandem jump performed. (Zarda Dep. pg. 301-302:23-8, 309: 11-16; Winstock Dep. pg. 61 :2-7). Instructors can also earn $50 per jump for training tandems, $55 per jump for advanced free fall, and $59 per jump for video jumps. (Winstock Dep. pg. 61 :2-7).
Admitted, but that doesn’t mean it was a legal hourly wage when plaintiff stayed all day and got no pay. Zarda Wage Aff. 108. Zarda, and other employees, were paid on a W-2 basis, receiving a weekly paycheck from SDLI. (Winstock Dep. pg. 60:20-23). Paychecks at SDLI were issued the week after the wages were earned. (Zarda Paycheck 06/27/10 (Defendants Exhibit 4)).
This immaterial fact is admitted, and it is averred that – unless the employer can meet its burden in proving otherwise – the plaintiff worked 25 days for a total of about 250 hours and got no pay, and that the hourly wage laws require hourly wages, not weekly wages averaged over a period of time depending on the weather. Zarda Wage Aff, pp. 3-4. 109. For the week of May 11, 2009 to May 1 7, 2009, Zarda worked two days, jumping ten (10) times, and earning $410.00. (SDLI Jump Log for 2009 (Defendants Exhibit 5); Employee Earnings Record from 111/09 to 12/31/10 for Donald Zarda (Defendants Exhibit 7)).
This immaterial fact is admitted. 110. For the week of May 18, 2009 to May 24, 2009, Zarda worked seven (7) days, jumping 37 times, and earning $1510.00. (Def. Ex. 5; Def. Ex. 7).

	  

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This immaterial fact is admitted. 111. For the week of May 25, 2009 to May 31, 2009, Zarda worked three (3) days, jumping 29 times, and earning $1,215.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 112. For the week of June 1, 2009 to June 7, 2009, Zarda worked five (5) days, jumping 35 times, and earning $1,400.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 113. For the week of June 8, 2009 to June 14, 2009, Zarda worked four (4) days, jumping 16 times, and earning $640.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 114. For the week of June 15, 2009 to June 21, 2009, Zarda worked five (5) days, jumping 27 times, and earning $1,112.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 115. For the week of June 22, 2009 to June 28, 2009, Zarda worked four ( 4) days, jumping 37 times, and earning $1360.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 116. For the week of June 29, 2009 to July 5, 2009, Zarda worked two (2) days, jumping 9 times, and earning $370.00. (Def. Ex. 5; Def. Ex. 7).
This immaterial fact is admitted. 117. For the week of May 10, 2010 to May 16~	  2010, Zarda worked two (2) days, jumping 19 times, and earning $760.00. (SDLI Jump Log for 2010, (Defendants Exhibit 6); Def. Ex. 7).
This immaterial fact is admitted.

	  

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118. For the week of May 17,2010 to May 23,2010, Zarda worked four (4) days, jumping 20 times, and earning $600.00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 119. For the week of May 24, 2010 to May 30, 2010, Zarda worked six (6) days, jumping 30 times, and earning $992.00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 120. For the week of May 31, 2010 to June 6, 2010, Zarda worked five ( 5) days, jumping 34 times, and earning $1,150,00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 121. For the week of June 7, 2010 to June 13, 2010, Zarda worked six (6) days, jumping 21 times, and earning $811.00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 122. For the week of June 14, 2010 to June 20, 2010, Zarda worked three (3) days, jumping 35 times, and earning at least $772.00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 123. For the week of June 21, 2010 to June 27, 2010, Zarda worked one (1) day, jumping 9 times, and earning $370.00. (Def. Ex. 6; Def. Ex. 7).
This immaterial fact is admitted. 124. Zarda “liked being able to make good money” skydiving, as the skydiving “instructors make pretty good money in that short amount of time.” (Zarda Dep. pg. 209210:24-5).
This immaterial fact is admitted. 125. For the period of January 1, 2007 to July 23, 2009, the minimum wage in the State

	  

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of New York was $7.15 per hour. (New York State Department of Labor History of the

Hourly Minimum Wage (Def. Ex. 8)).

Admitted.

126. For the period of July 24, 2009 to the present, the minimum wage in the State of

New York was $7.25 per hour. (Def. Ex. 8).

Admitted.

127. Plaintiff withdraws all claims for minimum wage and overtime under the FLSA.

(ECF Doc. No. 106 (Defendants' Exhibit 10)).

Admitted.

	   Dated:	  New	  York,	  New	  York	  

	   	  

April	  7,	  2013	  

	  

	   	  

	  

	  

	  

	  

	  

	  

	  

	  

/s/	   	  

	  

	  

	   	  

	  

	  

	  

	  

	  

	  

GREGORY	  ANTOLLINO	  

	   	  

	  

	  

	  

	  

	  

	  

Attorney	  for	  Plaintiff	  

	   	  

	  

	  

	  

	  

	  

	  

18-­‐20	  West	  21st	  Street	  Suite	  802	  

	   	  

	  

	  

	  

	  

	  

	  

New	  York,	  NY	  10010	  

	   	  

	  

	  

	  

	  

	  

	  

(212)	  334-­‐7397

	  

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 Case 2:10-cv-04334-JFB-AYS Document 129 Filed 04/09/13 Page 1 of 25 PageID #: 2746

UNITED	  STATES	  DISTRICT	  COURT	  

EASTERN	  DISTRICT	  OF	  NEW	  YORK	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	  

	  

DONALD	  ZARDA,	   	  

	  

	  

	  

	  

PLAINTIFF’S	  56.1	  

STATEMENT	  	  

IN	  SUPPORT	  AND	  

Plaintiff,	   	  

	  

	  

	  

	  

	  

FURTHER	  OPPOSITION	   	  

	  

	  

-­‐against-­‐	   	  

	  

	  

	  

	  

10-­‐cv-­‐04334-­‐JFB	  

	  

ALTITUDE	  EXPRESS,	  INC.,	  	  

dba	  Skydive	  Long	  Island,	  and	  RAY	  MAYNARD,	  	  

	  

Defendants.	   	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	  

Plaintiff	  makes	  the	  following	  statement	  under	  local	  rule	  56.1	  a	  in	  

support	  of	  his	  motion	  for	  partial	  summary	  judgment,	  under	  Rule	  

56.1(a),	  and	  in	  further	  opposition	  to	  defendants’	  motion	  under	  Rule	  

56.1(b).	  

1. Skydiving	  is	  an	  inherently	  dangerous	  activity.	  Maynard	  deposition	  

(hereinafter	  MD	  at	  65).	  

2. Skydiving	  is	  not	  for	  everyone.	  Maynard	  deposition	  (hereinafter	  

MD	  at	  11-­‐12).	  Maynard’s	  opinion	  is	  that	  you	  have	  to	  be	  a	  little	  bit	  

crazy	  to	  do	  it.	  Id.	  at	  31-­‐32	  

3. A	  person	  who	  doesn't	  like	  to	  be	  touched	  should	  not	  skydive.	  MD	  

17;	  Callanan dep. at 99.	  The	  aircraft	  is	  a	  fairly	  small	  aircraft	  area,	  

filled	  with	  many	  people.	  Id.	  13-­‐16.	  	  

	  

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4. Not only because of the cramped aircraft, but also because they instructor and passenger are strapped together, tandem skydiving, by the nature of the activity, is a sport where the instructor by necessity violates the passenger’s personal space. Winstock deposition at 82-83.
5. If	  a	  person	  chose	  to	  go	  skydiving	  and	  complained	  about	  being	   touched	  inappropriately,	  Maynard	  testified	  at	  his	  deposition	  that	   would	  investigate	  further.	  MD	  at	  20.	  
6. However,	  in	  plaintiff’s	  case,	  Maynard’s	  “investigation,”	  if	  you	  could	   call	  it	  that,	  before	  he	  fired	  plaintiff,	  consisted	  solely	  of	  watching	   the	  video	  of	  Orellana’s	  (the	  complainant’s)	  jump,	  which	  shows	  no	   inappropriate	  touching.	  See	  defendants’	  56.1	  statement	   (hereinafter	  “D56”	  at	  ¶	  77	  (investigation	  limited	  to	  reviewing	   exculpatory	  video)	  attached	  to	  Antollino	  Dec.,	  (hereinafter	  “AD”)	   at	  Exhibit	  B.	  
7. Ray	  did	  not	  call	  Rosanna	  and	  say	  what	  it	  was	  about	  the	  hips	  that	   made	  her	  feel	  uncomfortable.	  Id;	  MD	  at	  249.	  
8. Rosana,	  who	  found	  the	  experience	  “crazy	  and	  exhilarating,”	  did	   not	  want	  to	  complain.	  Orellana	  dep.	  at	  65,	  69.	  
9. What	  Rosanna	  felt	  might	  well	  have	  been	  something	  like	  he	  was	   adjusting	  the	  straps	  as	  required.	  MD	  at	  249-­‐50.	  

	  

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10. And	  if	  what	  she	  felt	  was	  simply	  Don’s	  adjusting	  the	  straps,	  that	   would	  not	  be	  a	  legitimate	  complaint.	  Id.	  at	  250.	  
11. Maynard	  did	  not	  look	  at	  the	  photographs	  of	  the	  jump	  at	  the	  time,	   but	  they	  show	  nothing	  inappropriate	  either.	  Id.;	  MD	  at	  323-­‐25.	  
12. Maynard	  did	  not	  even	  speak	  to	  Orellana;	  he	  credited	  entirely	  the	   allegations	  of	  her	  boyfriend,	  David	  Kengle.	  MD	  at	  185,	  199.	  
13. According	  to	  Ray,	  Kengle	  said	  he	  didn’t	  want	  his	  money	  back,	  but	   Maynard	  refunded	  it	  anyway,	  and	  Kengle	  cashed	  the	  check.	  Id.	  at	   186-­‐87;	  Kengle	  dep.	  at	  31.	  
14. Kengle,	  who	  is	  depicted	  at	  page	  30	  of	  the	  Sanchez	  declaration	   Exhibit	  A,	  was	  at	  the	  time	  of	  the	  jump	  an	  unemployed	  waiter.	  He	   rents	  a	  $150,000	  home	  and	  leases	  a	  decade-­‐old	  car,	  an	  upgrade	   from	  a	  1988	  car	  he	  drove	  as	  recently	  as	  a	  few	  years	  ago.	  See	  AD	  at	   Exhibit	  Q	  (TLO	  Asset	  Report).	  
15. This	  is	  not	  to	  denigrate	  the	  lower	  middle	  class,	  or	  the	  poor,	  but	  to	   demonstrate	  that	  that	  Kengle	  had	  a	  motive	  to	  complain.	  And	  he	   noted	  that	  the	  cost	  of	  the	  jump	  was	  $900,	  thus	  it	  “is	  even	  more	   amplified,	  because	  it's	  .	  .	  .	  something	  that's	  way	  more	  expensive	   and	  [therefore]	  something	  way	  more	  extreme.	  Id.	  at	  31,	  35.	  

	  

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16. A	  complaint	  is	  a	  common	  thing	  for	  Kengle;	  if	  you	  don’t	  like	   someone’s	  attitude,	  a	  complaint	  is	  appropriate.	  Id.	  at	  35-­‐36.	  
17. But	  the	  contemporary	  photo	  and	  video	  evidence	  shows	  Don	  with	   a	  perfectly	  cheerful	  attitude.	  AD	  at	  Exhibit	  B.	  
18. Kengle admits that he does not “have an understanding of the procedures they’re training in, as far as attaching gear or a harnessing or what their physical actions are suppose to be in terms of protocol[.]” Kengle dep. at 62.
19. Kengle	  admitted	  that	  he	  does	  not	  know	  that	  putting	  hands	  on	  hips	   and	  chins	  on	  shoulder	  was	  according	  to	  protocol.	  Kengle	  dep.	  at	  
31.	  
20. For	  Don,	  it	  was	  his	  normal	  way	  of	  protecting	  the	  safety	  and	  
comfort	  of	  every	  single	  passenger.	  Zarda	  Dec.	  at	  ¶	  24.	  
21. Don,	  who	  has	  some	  20	  years	  of	  experience	  in	  the	  sport	  and	  has	   done	  some	  5800	  jumps,	  is	  a	  creature	  of	  habit	  and	  procedure	   because	  to	  experiment	  could	  lead	  to	  injury	  or	  fatality.	  Id.	  and	  id.	  ¶	   1	  and	  at	  Exhibit	  C	  (warning	  from	  United	  Parachute	  Technologies	  
about	  safe	  use	  of	  equipment).	  
22. Although	  once	  Don	  injured	  himself	  for	  reasons	  that	  were	  not	  the	   result	  of	  any	  negligence	  on	  his	  part,	  he	  has	  never	  had	  as	  much	  as	  

	  

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an	  injury	  in	  an	  inherently	  dangerous	  activity.	  MD	  at	  152;	  Zarda	   Dec.	  at	  ¶	  24.	   23. Kengle	  considers	  his	  girlfriend	  Rosanna	  “beautiful,”	  and	  is	  upset	   with	  the	  way	  that	  men	  hit	  on	  her,	  especially	  gay	  men,	  who	  think	   they	  can	  get	  away	  with	  it.	  Kengle	  dep.	  at	  24	  and	  38.	  	   24. It	  is	  undisputed	  that	  this	  was	  a	  gift	  for	  Orellana’s	  birthday.	  Kengle	   Dep.	  at	  45.	   25. Being	  an	  unemployed	  server,	  and	  relatively	  poor,	  however,	  a	  $900	   jump	  probably	  made	  that	  a	  little	  bit	  hard	  financially	  on	  Kengle.	   See	  Antollino	  dec.	  at	  Exhibit	  Q;	  Kengle	  Dep.	  at	  6.	   26. Despite	  Maynard’s	  saying	  that	  ruining	  Rosana’s	  birthday	  was	  the	   reason	  for	  his	  suspension,	  MD	  at	  229	  “You	  were	  suspended	  for	   completely	  ruining	  somebody's birthday	  because	  of	  you	  talking	   about	  your	  personal	  life	  to	  them.”	  Kengle	  did	  not	  think	  that	   anything	  Don	  did	  “ruined”	  the	  day;	  he	  characterized	  it	  as	  a	  “taint.”	   Kengle	  dep.	  at	  45.	   27. Rosana	  did	  not	  believe	  the	  day	  was	  ruined,	  but	  defined	  it	  as	  “crazy	   and	  exhilarating.”	  Orellana	  Dep.	  at	  65.	  

	  

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28. “Exhilarate”	  is	  defined	  as	  “to make cheerful and excited : to enliven, to elate.” See Webster’s Online at http://www.merriamwebster.com/dictionary/exhilarate.	  
29. According	  to	  Ray,	  craziness	  goes	  hand	  in	  hand	  with	  skydiving:	  You	   don’t	  have	  to	  be	  crazy	  to	  do	  it,	  but	  it	  helps.	  MD	  at	  31.	  
30. Because	  skydiving	  is	  an	  inherently	  dangerous	  activity,	  and	  among	   other	  reasons,	  Skydive	  Long	  Island	  requires	  all	  passengers	  to	  sign	   a	  detailed	  waiver	  setting	  forth	  what	  they	  will	  experience	  in	  the	   skydive	  including,	  for	  example,	  that	  they	  will	  go	  as	  high	  as	  13,500	   feet.	  AD	  at	  Exhibit	  1.	  
31. If	  a	  passenger	  did	  happen	  to	  go	  as	  high	  as	  12,000	  feet,	  and	  later	   complained	  that	  would	  not	  be	  a	  legitimate	  complaint.	  MD	  at	  31	  
32. Lots	  of	  complaints	  that	  people	  can	  make	  are	  illegitimate.	   33. If	  a	  person	  dies	  while	  skydiving,	  and	  his	  estate	  later	  complains,	  
that	  is	  not	  a	  legitimate	  complaint,	  even	  if	  the	  instructor	  is	   negligent.	  See	  AD	  at	  Exhibit	  1.	  MD	  deposition	  at	  22.	   34. The	  waiver	  in	  paragraph	  13	  specifically	  states,	  “if	  I	  am	  making	  a	   student	  jump,	  I	  understand	  that	  I	  will	  be	  wearing	  a	  harness	  which	   will	  need	  to	  be	  adjusted	  by	  the	  jump	  master.	  Is	  my	  jump	  is	  a	   tandem	  jump,	  I	  understand	  that	  the	  tandem	  master	  will	  attach	  my	  

	  

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hardest	  to	  his	  and	  that	  this	  will	  put	  my	  body	  in	  close	  proximity	  to	   that	  of	  the	  tandem	  master.	  I	  specifically	  agree	  to	  this	  physical	   contact	  between	  the	  tandem	  master	  and	  myself.	  Antollino	   declaration,	  exhibit	  A,	  paragraph	  13.	  Rosanna	  initialed	  that	   release,	  but	  did	  not	  bother	  to	  read	  the	  waiver.	  Orellana	  Dep.	  at	  72.	   35. Rosana	  did	  not	  read	  past	  the	  first	  page	  of	  the	  waiver,	  therefore	   she	  did	  not	  get	  to	  ¶	  13.	  Orellana	  Dep.	  at	  36-­‐37.	  Kengle	  read	  the	   waiver	  for	  her,	  because,	  according	  to	  him,	  he	  is	  the	  “brains	  of	  the	   operation.”	  Kengle	  deposition	  at	  16.	   36. But,	  according	  to	  Ray,	  that	  was	  wrong	  because	  every	  passenger	   should	  carefully	  read	  the	  waiver	  him	  or	  herself.	  MD	  at	  53–54.	   37. There	  are	  several	  points	  of	  attachment	  they	  did	  the	  tandem	   instructor	  has	  to	  be	  attached	  to	  the	  passenger.	  MD	  at	  19-­‐20.	  Two	   of	  the	  attachments	  are	  approximately	  at	  the	  hips.	  Id.	  at	  27.	  Exhibit	   4	  to	  the	  MD,	  attached	  to	  AD	  at	  Exhibit	  T	  depicts	  the	  apparatus	  to	   which	  the	  passenger	  is	  strapped	  to	  the	  instructor.	  MD	  at	  26-­‐27.	   38. Ray	  presumably	  used	  the	  waiver	  to	  defend	  himself	  in	  a	  lawsuit	   where	  a	  passenger	  died,	  because	  the	  lawsuit	  was	  dismissed.	  MD	  at	   22.	  

	  

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39. Ray	  did	  not	  refund	  the	  money	  to	  the	  family	  of	  the	  passenger	  who	   died,	  and	  his	  family’s	  complaint	  was	  illegitimate.	  MD	  at	  22.	  
40. Thus	  Ray	  used	  the	  waiver	  to	  defend	  himself	  against	  a	  lawsuit	  for	   someone	  who	  died,	  but	  was	  unwilling	  to	  use	  it	  to	  protect	  the	   integrity	  of	  Don	  Zarda,	  whom	  he	  characterized	  as	  a	  good,	  safe	   instructor	  and	  good	  guy.	  MD	  at	  134,	  149.	  
41. When	  in	  the	  air,	  all	  the	  points	  of	  attachment	  need	  to	  be	  adjusted	   for	  the	  safety	  and	  comfort	  of	  the	  passenger.	  MD	  at	  27–28.	  
42. Maynard	  agrees	  that	  safety	  is	  more	  important	  than	  comfort.	  MD	   28.	  
43. Rosanna	  agrees	  that	  she	  would	  rather	  be	  safe	  than	  comfortable	  on	   a	  skydive.	  Orellana	  deposition	  at	  98.	  
44. She	  does	  not	  remember	  Don	  whispering	  in	  her	  ear.	  Id.	  at	  99.	   45. She	  does	  not	  believe	  that	  plaintiff	  crossed	  the	  line	  by	  touching	  her	  
in	  a	  sexual	  manner.	  Orellana	  dep.	  at	  101.	   46. Even	  jealous	  Kengle	  would	  want	  Zarda	  to	  touch	  her	  breast	  “if	  it	  
meant	  saving	  her	  life.”	  Kengle	  Dep.	  at	  25.	  	   47. There	  have	  been	  lots	  of	  complaints	  about	  skydive	  Long	  Island	  for	  
example	  on	  yelp.com,	  one	  reviewer	  said”	  customer	  service	  does	   not	  exist	  here!!!!!	  What	  ever	  you	  do	  DO	  NOT	  go	  to	  this	  place.…	  I	  

	  

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repeat	  DO	  NOT	  waste	  your	  money	  on	  these	  people….	  Skydive	   Long	  Island	  sucks.	  Stay	  away.”	  AD	  at	  Exhibit	  F.	  	   48. Another	  yelp.com	  customer	  had	  five	  complaints	  including	   misrepresentations	  about	  the	  prices	  on	  the	  website;	  the	  low	   production	  values	  of	  their	  videos;	  frame	  by	  frame	  shots	  that	  don't	   show	  anything	  interesting;	  the	  interminable	  wait;	  the	  rude	   “ladies”	  in	  the	  office.	  AD	  at	  exhibit	  F.	  	   49. There	  have	  been	  complaints	  about	  Sky	  Dive	  Long	  Island,	   complaints	  having	  nothing	  to	  do	  with	  plaintiff.	  See	  MD	  at	  55,	   referring	  a	  website	  called	  wegoplaces.com.	  MD	  at	  60.	   50. All	  of	  these	  complaints,	  in	  Maynard’s	  opinion,	  are	  illegitimate.	  MD	   at	  62-­‐63.	   51. According	  to	  Maynard,	  the	  person	  who	  complained	  about	  the	   “ladies	  in	  the	  office”	  being	  rude	  is	  only	  telling	  one	  side	  of	  the	  story,	   so	  how	  does	  he	  know	  that	  it's	  true?	  MD	  at	  64.	   52. Yet	  Maynard	  would	  not	  let	  plaintiff	  see	  the	  video	  of	  the	  person	   who	  made	  a	  complaint	  against	  him,	  so	  that	  plaintiff	  could	  tell	  his	   side	  of	  the	  story.	  MD	  at	  184.	  Zarda	  dec.	  at	  ¶¶	  4,	  28,	  29,	  35,	  42.	   53. An	  irritating	  complaint	  to	  Maynard	  was	  one	  made	  on	  the	  “Ripoff	   Report”	  AD	  at	  exhibit	  K.	  This	  complaint	  is	  dated	  October	  2009,	  at	  

	  

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a	  time	  when	  plaintiff	  was	  contemplating	  coming	  back	  to	  skydive	   Long	  Island	  and	  therefore	  had	  no	  incentive	  to	  say	  anything	  bad	   about	  the	  place.	  Zarda	  declaration	  at	  ¶	  19.	   54. The	  complainant	  in	  the	  Ripoff	  Report	  alleged	  that	  “once	  in	  the	   plane	  the	  tandem	  instructor	  was	  feeling	  up	  my	  girlfriend	  and	  her	   friends	  as	  well.”	  AD	  exhibit	  K,	  page	  1.	  The	  complainant	  also	  goes	   on	  to	  say	  that	  SDLI	  is	  unsafe,	  and,	  like	  a	  complainant	  on	  yelp.com,	   that	  the	  customer	  service	  is	  very	  poor.	  Id.	   55. The	  complainant	  also	  noted	  that	  one	  of	  the	  passengers	  this	   summer	  had	  broken	  his	  ankle.	  Id.	   56. Maynard	  finally	  at	  the	  second	  day	  of	  his	  deposition	  had	  to	  admit	   that	  he	  wrote	  the	  response	  on	  the	  Ripoff	  Report,	  which	  starts	  at	   page	  2	  of	  AD	  exhibit	  K.	  He	  identifies	  himself	  as	  the	  owner	  and	   defends	  his	  operation.	  	   57. Ray	  admits	  that	  indeed	  a	  passenger	  did	  break	  his	  ankle,	  but	  he	   blamed	  the	  passenger	  for	  not	  picking	  up	  his	  feet	  as	  instructed.	  Id.	   58. Thus,	  not	  matter	  the	  merit	  of	  the	  complaints,	  defendant’s	  56.1	   statement,	  ¶	  78,	  wherein	  it	  indicates	  the	  only	  complaint	  was	   against	  Don	  is	  a	  lie.	  

	  

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59. Presumably,	  unlike	  plaintiff’s	  situation,	  Maynard	  did	  something	  of	   an	  investigation	  pertaining	  to	  the	  passenger	  broke	  his	  leg,	  and	   Maynard	  came	  to	  the	  conclusion	  that	  his	  employee	  was	  not	  at	   fault.	  Page	  2	  of	  AD	  exhibit	  K.	  
60. But	  Ray	  did	  no	  investigation	  whatsoever	  for	  plaintiff	  other	  than	  to	   review	  the	  exculpatory	  video,	  which	  is	  no	  investigation	  at	  all,	   since	  Orellana’s	  and	  Kengle’s	  recollection	  of	  the	  incident	  differ	  in	   material	  respects.	  Additionally,	  Ray	  had	  every	  reason	  to	  believe	   plaintiff	  was	  simply	  being	  safe	  and	  had	  no	  interest	  in	  Rosana	   given	  that	  he	  is	  gay.	  Zarda	  Dep.	  at	  254-­‐55.	  The	  video	  shows	   nothing	  inappropriate.	  AD	  Exhibit	  B.	  
61. Plaintiff	  was	  not	  even	  allowed	  to	  see	  the	  video,	  to	  defend	  himself	   and	  answer	  the	  allegations	  that	  he	  had	  touched	  a	  passenger	   inappropriately.	  Zarda	  dec.	  at	  ¶¶	  4,	  28,	  29,	  35,	  42.	  
62. Plaintiff	  has	  more	  experience	  in	  terms	  of	  actual	  jumps	  than	   Maynard.	  MD	  at	  249.	  
63. Maynard	  saw	  the	  jump	  video	  and	  rated	  it	  eight	  or	  nine	  out	  of	  10;	   Richard	  Winstock,	  the	  chief	  instructor,	  gave	  it	  a	  97	  out	  of	  100.	   Winstock	  thought	  that	  the	  landing	  was	  superb.	  MD	  at	  280-­‐81;	   Winstock	  dep.	  at	  75.	  

	  

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64. Although	  on	  criticism	  that	  Ray	  had	  was	  that	  Ray	  wasn’t	  touching	   Rosana	  enough	  during	  the	  pre-­‐jump.	  Md.	  at	  280.	  
65. Yet	  despite	  the	  evidence	  that	  the	  jump	  was	  excellent	  if	  not	  close	  to	   perfect,	  plaintiff	  was	  not	  given	  an	  opportunity	  to	  know	  who	   complained	  against	  him;	  Maynard	  did	  not	  speak	  to	  the	  actual	   complainant,	  only	  her	  unemployed	  boyfriend.	  Maynard	  did	  not	   speak	  to	  anyone	  in	  the	  plane.	  See	  citations	  to	  the	  evidence,	  supra.	  
66. Rosanna,	  for	  her	  part,	  did	  not	  want	  to	  file	  a	  complaint;	  only	  her	   unemployed	  boyfriend,	  who	  skillfully	  got	  a	  complete	  refund	   without	  seeming	  to	  ask	  for	  one.	  Orellana	  Dep.	  at	  69;	  MD	  at	  186-­‐87.	  
67. In	  response	  to	  the	  complaint	  in	  the	  ripoff	  report	  Maynard	  noted	   quite	  obviously,”	  personally	  if	  someone	  was	  feeling	  up	  my	   girlfriend,	  I	  would	  do	  something	  on	  the	  spot	  to	  defend	  her	  dignity-­‐ unless	  of	  course	  I	  am	  [a]	  fourth-­‐grader.”	  AD	  Exh.	  K,	  p.3.	  
68. Ray	  noted	  that	  “it	  is	  a	  shame	  in	  today's	  world	  something	  like	  this	   can	  actually	  be	  put	  out	  there	  for	  all	  to	  see	  with	  no	  proof,	  and	  I	   have	  to	  respond	  to	  these	  lies	  and	  accusations.”	  Id.	  
69. Yet	  he	  credited	  the	  secondhand	  story	  of	  the	  unemployed	   boyfriend	  of	  Rosanna	  without	  so	  much	  as	  an	  investigation.	  

	  

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70. At	  his	  deposition	  he	  was	  shown	  the	  photographs	  taken	  at	   Rosana’s	  jump,	  and	  had	  to	  admit	  that	  he	  did	  not	  see	  anything	   inappropriate.	  MD	  323-­‐25.	  
71. Lauren	  Callanan,	  the	  former	  office	  manager	  Skydive	  Long	  Island	   said	  that	  she'd	  responded	  to	  the	  complaints	  on	  the	  ripoff	  report.	   Callanan	  deposition	  at	  40.	  	  
72. Donald Zarda is 100% gay. Zarda Dec. ¶ 10. 73. He has never been with a woman and is repulsed by the thought of being
with a woman. Id. 74. Rosanna didn't read passed the first page the waiver, see dep. at 13, at so she
didn't know she probably didn't know she was consenting to being in very close proximity to the instructor. 75. Yet for safety purposes she needs to be touched at various points on her body, and two of these points are at the hips. MD at 28. 76. There are stripes at the hips that need to be manipulated. MD at 27-28. 77. That is why a person doesn't like to be touched should not skydive. MD 17. 78. If a person goes out in the sky dive and makes the complaint that your instructor was adjusting straps around her body and she felt uncomfortable about it that would not be a legitimate complaint. MD at 20

	  

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79. Since the overwhelming majority of tandem instructors are men, when heterosexual couples stop at the drop zone, a tired joke is often made to the effect of, “I bet you didn't think year girlfriend was going to get strapped up two another guy.” Maynard Dep. At 39, 40.
80. Maynard has never fired someone for making a statement like that. MD at 40-41.
81. He has never fired an instructor where a passenger has had an injury. MD at 41.
82. On June 21, 2010, plaintiff was called in to meet with Maynard who suspended plaintiff on the spot as a result of the complaint made by Kengle. Zarda Dec. at 28.
83. Maynard also took out of plaintiff's paycheck to reimburse himself for the refund that he gave to Kengle. MD at 188.
84. Although he gave it back, it’s no different than stealing something then giving it back and therefore wrong. MD at 190.
85. Logically, Zarda lost the beneficial use of that money during the week it was taken away from him.
86. Maynard told plaintiff two things had come up in Kengle’s complaint: (1) that plaintiff had said to a female passenger words to the effect that, “don't

	  

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worry about how close we are because I'm gay.” The woman also made the allegation that plaintiff said he just broke up with his boyfriend. MD at 182 87. In fact that's not factually true, but plaintiff may have said “and I have the ex-husband to prove it.” Zarda Dec. at 23. 88. Zarda tried to get Richard Winstock two speak to Ray and let him come back to the drop zone, Zarda dec. at ¶ 36, and Winstock believed that plaintiff was an excellent instructor and should return. See Winstock Dep. at 24-25, 83. 89. Richard didn't know what the complaint was about but in order to stave off plaintiff’s termination, he strongly recommended that plaintiff be given a letter of reprimand for what ever happened. Winstock deposition at 83. 90. Later Winstock would quit SDLI to Maynard's dissatisfaction. MD at 347. But unbeknownst two Maynard, id., Winstock could no longer stand working with Ray and quit. He sent plaintiff an email telling him that his termination had been wrong. Zarda Dec. at Exhibit E, p.2. 91. Winstock had been unsuccessful in convincing Maynard not to fire Ray, and when Zarda returned on June 28, an enraged Maynard terminated him. Antollino Dec. Exhibit B. 92. The tone of his voice, in parts, is of anger, perhaps rage. Id.

	  

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93. He stated words to the effect that plaintiff was not being fired because it was “a gay issue.” MD at 226. He noted that the offense was the sharing of personal information, and that if Rich Winstock was talking about his “chicks” to passengers, he too would be fired. Id.
94. But in fact at his deposition Winstock testified that it is on rare occasion appropriate to describe his sexuality in order to allay the fears of a passenger, particularly an older female passenger. Winstock dep. at 109-110.
95. Maynard assumed this to be true at his deposition, and contrary to what he told Zarda, he said there was nothing wrong with it, and did not fire Winstock; rather, he was very unhappy when Winstock left him. MD at 220, 347.
96. Plaintiff believed that it was appropriate to announce to Rosanna his sexual orientation for two reasons. First, he believed that the joke to the effect “hey I bet you didn't think your girlfriend was get a get strapped to another guy” had made her feel uncomfortable, and he wanted her to know that he had no inappropriate ideas about being so close to her. Zarda Dec. at ¶ 23.
97. Zarda’s experience with women is that they are cool about homosexuality. Id. at ¶¶ 8, 23.
98. Further, Zarda wanted to remove himself from the insinuation that he was heterosexual or was being strapped to the woman for his gratification. Id.

	  

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Even Maynard thought that might be an appropriate thing to do under the circumstances. MD at 161-62. 99. Don tired of the boy-girl joke about “being strapped to another guy,” and does not believe that just because he is a man he must acquiesce into the assumption that he is heterosexual, despite that he appears very athletic and masculine. Defendant’s 56.1 statement at § 31 and Zarda Dec at ¶¶ 8, 23. 100. Don used his judgment to make the passenger more comfortable in that one situation just as Rich Winstock uses his judgment to make the passenger more comfortable in certain situations. Id. 101. Nevertheless, Don’s judgment call, just like the strategy that Winstock uses in a heterosexual context, backfired. Even though Rosana didn't want to complain, her boyfriend a waiter was unemployed at the time and complained. Ray credited his second-hand account so immediately and was so offended he jumped on the allegation without even conducting an investigation except to review a video that contain only exculpatory information, or at least information that did not lead to the conclusion that plaintiff was doing anything inappropriate. MD at 203. 102. Additionally, Maynard brought up the second-hand allegation that Rosanna, who didn't read the waiver, and whom he didn't talk to, felt uncomfortable at the hips. MD at 247.

	  

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103. Maynard, though his sister was gay, has never been to a gay establishment and knows no other gay people than his sister’s widow. MD at 100, 114.
104. Ray believes that being gay is an “after hours” affair, consisting of “escapades” that Zarda was “notorious for. MD at 139, 226, Defendants’ 56.1 statement at ¶ 38.
105. Plaintiff never gave Maynard that inclination of an idea that he was sexually gratified by women, and in fact repeated at the suspension interview that he was gay. Zarda Dec. at ¶ 33.
106. Maynard hired Zarda in 2009 and 2010 knowing he was gay.1 107. Don's being gay was acceptable up to a point - as long as he didn't “flaunt”
his after-hours, notorious escapades. 139, 226, Defendants’ 56.1 statement at ¶ 38. 108. Obviously, Ray has an old fashioned notion of what it means to be gay, and didn’t want to offend Kengle’s bigotry. See, e.g., Kengle	  dep.	  at	  24	  and	  38. 109. On several occasions when plaintiff did anything that was beyond the norm of masculinity, Maynard would make a derisive comment. First, when plaintiff returned from an injury in 2009 with a pink cast, he demanded that

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1	  Plaintiff	  denies	  that	  he	  ever	  told	  Ray	  he	  was	  gay,	  and	  certainly	  not	  in	  2001	  when	  he	   was	  first	  hired.	  Zarda	  Dec.	  at	  ¶	  6.	  Nevertheless,	  this	  dispute	  is	  irrelevant	  insofar	  as	   homosexuals	  had	  no	  legal	  protections	  in	  2001	  and	  that	  statute	  of	  limitations	  to	  any	   other	  cause	  of	  action	  would	  have	  long	  ago	  expired.	  

	  

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plaintiff paint the cast black in order to remain at the drop zone. Zarda Dec. at ¶ 17. 110. Defendants allege that plaintiff was asked not to paint the cast black, but to put a sock over it so as not to scare customers that injury could occur. Defendants’ rule 56.1 statement at ¶ 25. 111. But the Ray safety video, Antollino Dec. at Exhibit B, talks about the possibility of injury and death from skydiving. So does the waiver. Id. at Exhibit A. So the possibility of injury is affirmatively mentioned to all passengers. 112. Furthermore, the cast Don wore is large, Zarda Dec. at Exhibit A, and it is probably not feasible to find a sock that would fit over it. 113. Furthermore, assuming plaintiff had placed a huge sock on the cast, he still would have been on crutches, and it would have looked like he had a cast with a sock on it, fooling no customers. Zarda Dec. at Exhibit A and ¶ 17. 114. Pink is the color of gay liberation, and that is why plaintiff chose that color for his cast. Zarda Dec. at 15. Ray wanted him to paint it black and erase the color of the pink triangle. Id. at 111. 115. Sometime later after the cast was taken off, plaintiff was at the drop zone in a boot. Zarda Dec. at 18. He took the boot off near the Coke machines, and

	  

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exposed his pink painted toenails. Ray’s reaction was to say, “That’s Gay!” in a derisive tone. Id. 116. During the termination discussion, Ray describes plaintiff’s homosexuality as an “escapade.” Termination audio at Exhibit B. 117. In fact, escapade is a derisive term to describe one’s sexuality. Webster’s defines escapade as “a	  usually	  adventurous	  action	  that	  runs	  counter	  to	   approved	  or	  conventional	  conduct.” It offers the following synonyms: "antic,	  caper,	  capriccio,	  dido,	  prank,	  frolic,	  gag,	  jest,	  knavery,	   monkeyshine(s),	  practical	  joke,	  roguery,	  trick,	  waggery.”	  See	  Webster’s	   Online	  http://www.merriam-­‐ webster.com/dictionary/escapade?show=0&t=1365475292.This is disrespectful way of discussing a person’s being.	   118. In their 56.1 statement, defendants describe plaintiff’s acknowledgment of his sexuality as “notorious.” See Defendant’s 56.1 statement at ¶ 38. 119. In fact, the word notorious is another derisive term used to describe a person’s identity. Notorious is defined by Webster’s as “widely	  and	   unfavorably	  known”	  and	  describes	  as	  synonyms	  as	  “discreditable,	   disgraceful,	  dishonorable,	  ignominious,	  infamous,	  louche,	  disreputable,	   opprobrious,	  shady,	  shameful,	  shoddy,	  shy,	  unrespectable.”	  See	   http://www.merriam-­‐webster.com/dictionary/notorious.	  

	  

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120. Ray discredited plaintiff for discussing “personal issues” personal issues as one of the alleged reasons for firing him. MD at 226; termination audio, AD at Exh. B.
121. While admittedly being gay is a personal issue, there are numerous personal issues that Ray would not fire an employee for discussing at work. 256-57. The only personal issue that Ray testified he admonish or discipline in employee is for discussing homosexuality. MD at 256-57. Although he said at the termination meeting that he would fire Rich Winstock for talk about heterosexuality, when he learned it happened – or assumed it did – he did not fire Rich. See ¶ 97, supra.
122. The Human Rights Campaign (HRC) is the largest gay rights organization in the country and has and annual dinner where the president speaks. See http://www.whitehouse.gov/the-press-office/remarks-president-humanrights-campaign-dinner.
123. The HRC has a famous T-shirt called “Legalize Gay.” See Antollino Dec. at Exhibit X. Ray would not allow an employee to where such a T-shirt at his drop zone because it is not a platform for any political issues, yet on his Facebook page he made a tribute to the veterans. Id. at Y. This is not to denigrate veterans, but one's veteran status is personal information as well,

	  

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and political to some extent; an employee can discuss veteran's status at the drop zone, along with a host of other things. Id. and MD at 256-57. 124. Yet mentioning one’s sexual orientation to a customer is a no no, because it might be offensive to customers. MD at 252-53. 125. Defendants push hard in their 56.1 statement to suggest that the allegation that plaintiff groped Rosanna for his personal gratification is true. See generally defendant's 56.1 statement and e.g. at ¶ 94. 126. However, they have no proof whatsoever that plaintiff is not 100% gay, has never been with a woman, and only did some pretend to date of women before he came out of the closet. Zarda Dec. at ¶ 10. 127. Ray had every reason to disbelieve that plaintiff had in any way sexually harassed a woman. First, he is openly and, according to defendants. “notoriously” gay; second, touching Rosana at the thighs was professionally justified to protect her safety; and, third, the contemporaneous evidence overwhelmingly shows no impropriety on plaintiff’s part. See AD Exhibit B. 128. As to the allegation that plaintiff “whispered” into Rosana’s ear, Maynard knows that this is normal, because otherwise the instructors mouth or teeth might hit the back of the passengers and crack your teeth. Winstock dep. at 50; Zarda Dec. at 25; MD at 259.

	  

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129. Finally, where Maynard had the financial incentive to allege that plaintiff sexually harassed a customer-unemployment-he backed off the stronger allegation that might save his premiums from being increased. Antollino Dec. at Exhibit O; Maynard Dep. at 343.
130. Maynard immediately credited Kengle’s harassment allegation without interviewing the alleged victim of harassment by immediately suspending plaintiff and taking away from him $660 that he had earned. MD at 188.
131. However, by the time a couple of months had gone by Maynard couldn’t bring himself to mention this allegation even though it was in his financial incentive to do so. Antollino Dec. at Exhibit O; Maynard Dep. at 343.
132. Likely by then, Maynard realized how ridiculous the allegation was. A few points about wages: 	  
133. Although expected to be on the premises that STLI approximately 12 hours per day, plaintiff was only paid per job. Compare amended complaint at ¶ 15 with admission answer to amended complaint at ¶ 15.
134. Some days went by when plaintiff would be there all day and not make a dime, not even minimum-wage for the hours he spent at work at his employers insistence. Compare amended complaint at ¶ 16 with admission in answer to amended complaint at ¶ 16.

	  

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135. Maynard kept no sign in sheets or other records of employees comings or goings. Zarda Wage Aff. at Exhibit A.
136. Nevertheless plaintiff’s altimeter – the device that records every single jump – showed that while employed at SDLI he worked 24 days over the course of 2009 & 2010 and received no pay because he did no jumps. Zarda Wage Dec. at ¶ 10.
137. This means that for those days plaintiff worked many hours for no minimum wage.
138. The drop zone is near nothing. See AD at Exhibit V, being twenty minutes on call is of no benefit when you’re basically in a desert with an airport and a delicatessen.
139. Don is owed $1757.22, Zarda Wage Aff. at ¶ 10. plus costs, attorneys’ fees and penalties available under the New York Labor Law to be determined at a later time. A few points about the defendant’s defect electronic search:
	  
140. First, Ray has no idea what Lauren did in her electronic search. MD at 352. 141. Lauren	  was	  the	  one	  who	  performed	  the	  electronic	  search	  
mentioned	  in	  the	  affidavit	  of	  Raymond	  Maynard,	  see	  Zarda	  Dec.	   Exhibit	  G	  but	  she	  admitted	  that,	  number	  one,	  they	  have	  multiple	  

	  

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computers,	  and	  at	  the	  time	  of	  the	  search	  there	  was	  no	  server.	  Dep.	  
at	  13.	  
142. She	  also	  admitted,	  “I	  cannot	  confirm	  whether	  I	  went	  to	  each	  individual	  
station	  to	  perform	  any	  type	  of	  comprehensive	  search.	  Therefore,	  I	  can't	  
say	  whether	  I	  performed	  a	  comprehensive search or not.”
143. Plaintiff turned up an electronic document – praise from a customer – that was given to him by Lauren. Zarda Dec. at Exhibit F.
144. It is clear, that despite Ray’s conclusory affidavit, the defendants’ electronic search was defective and insufficient, despite court orders. See ¶¶ 139-142.
Dated:	   New	  York,	  New	  York	   	   	   April	  9,	  2013	   	   	   	   	   	   /s/	   	   	   	   Gregory	  Antollino,	  Esq.	  

	  

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 Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 1 of 10 PageID #: 2772
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------X

DONALD ZARDA,
Plaintiff, -against-

MEMORANDUM OF LAW IN OPPOSITION AND SUPPORT
10-cv-04334-JFB

ALTITUDE EXPRESS, INC., dba Skydive Long Island, and RAY MAYNARD,

Defendants. ----------------------------------------------------------------X

Don Zarda was a superlative employee who had one frivolous second-hand complaint made

against him. The defendants attempt to paint plaintiff as making contradictory claims in this lawsuit. But

in fact, it was the defendant who decided to credit the complainant’s contradictory complaints, giving

plaintiff two main causes of action that fit together – perhaps oddly, like a jigsaw puzzle, but they fit

together. In some ways this case, as unusual as it is, is quite simple. Plaintiff was not fired for telling the

customer of a girlfriend that he is gay, therefore raising both his (the customer’s hackles and Maynard’s)

and he was fired for doing so. As a result, he has a cause of action for being gay, but also a cause of

action for being a male: Don didn’t have to stand there and take like a man the assumption and

accusation of heterosexual. He’s a man – a masculine and athletic one at that – so he’s presumed to be

heterosexual most of the time. He’s not, however, and thus it is a discriminatory action based on his

gender rather than sexual orientation to forbid him to correct the assumption that, based on his athletic,

heterosexual appearance, that he is gay. Furthermore, at least initially, Maynard credited the allegation

that plaintiff had touched a woman for his sexual gratification. At a minimum, he used it as an excuse

for firing him without doing any semblance of investigation other than to watch a video that contained

nothing but exculpatory evidence. This man Maynard made some big mistakes, and now it is time for

judgment to be levied against him.

To be clear, plaintiff opposes all of defendant’s motions except the unpleaded motion that

plaintiff was subject to a hostile work environment under Title VII. He moves for summary judgment on 1

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 2 of 10 PageID #: 2773 his cause of action for adverse action on the grounds of sexual orientation, however, only opposes the motion on the grounds of hostile work environment as a question for the jury. He would like to, and it is a close call, but he will not move for summary judgment on the grounds of being subject to a sex stereotype under Title VII; nevertheless, he opposes the defendant’s motion on this cause of action, as there are clearly jury questions. Further, plaintiff moves for summary judgment on the grounds that he was not paid minimum wage on days in which he was paid nothing, and asks for an adverse inference on the grounds that the defendants’ electronic search was wholly inadequate, undocumented, and sanctionable as a matter of law. STATEMENT OF FACTS The statement of facts are set forth in the declaration of Donald Zarda and plaintiff’s 56.1 statement, which relies chiefly on the declaration of Ray Maynard. To restate it here is to waste the court’s time; the preliminary statement, supra, should suffice given the extensive factual material that has already been submitted.
A. APPLICABLE SUMMARY JUDGMENT STANDARDS. The Court is fully familiar with the standards governing summary judgment. See FRCP 56; Global Network Commc'ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009).
B. QUESTIONS INDICATIVE OF DISCRIMINATION UNDER TITLE VII REQUIRE A TRIAL. 1. Standards under Title VII A claim under Title VII is examined under the familiar standards, where the plaintiff bears the initial burden of establishing a “prima facie” case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A prima facie case under McDonnell Douglas is a de minimus burden in which the plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for the job; (3) he suffered adverse action; and (4) the adverse action occurred under circumstances “giving rise
2

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 3 of 10 PageID #: 2774 to an inference of discrimination.” See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). If the plaintiff meets this burden, the defendant must articulate “some legitimate, nondiscriminatory reason” for its action. Once such a reason is provided, the plaintiff may still prevail if s/he can show that the employer's determination was in fact the result of discrimination. Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir.2008). Summary judgment at that point becomes simply a question as to whether the evidence, viewed in the light most favorable to the plaintiff, is sufficient to sustain a reasonable finding that [his] dismissal was motivated at least in part by …discrimination.” Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 114 (2d Cir. 2007) (emphasis added) (citing, inter alia, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).
2. Plaintiff’s Prima Facie Case for Sex Stereotyping Under Title VII
In this case, plaintiff meets his prima facie burden, and this is evidence of discrimination that may be used not just for technical evidentiary reasons but as evidence as to the ultimate question of discrimination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149-50 (2000) (“Whether judgment as a matter of law is appropriate in any particular case will depend on . . . the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence . . . . ”) First, there is no question that plaintiff is a member of a protected class insofar as he is a male and it is discrimination to subject an employee to adverse action because he is a male. Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009). The defense sets forth a lovely presentation that sex stereotyping states a cause of action. While the remainder of their brief broadly construes the facts in their own favor, the second paragraph at page 3 of their brief, setting forth that sex stereotyping states a cause of action:
The United States Supreme Court has held that evidence of gender stereotyping may establish a violation of Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). An employer subjects an employee to gender stereotyping by assuming an employee will conform to a stereotype of their gender. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,119 (2d Cir. 2004) (holding stereotyping applies "to the supposition that a woman will conform to a gender stereotype"). Stereotype remarks can be "evidence that gender played a part in an adverse employment decision." Back v.
3

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 4 of 10 PageID #: 2775 Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) (internal quotations omitted).
Def. Br. at 3. In fact in the Back case, the Circuit found no contradiction on the grounds that the plaintiff was asserting both a garden variety gender discrimination claim and a sex stereotype claim. Id. at 119.
But the remainder of the brief rehashes some claims that plaintiff withdrew – federal overtime for example – and makes claims so disingenuous – e.g., that plaintiff did not suffer adverse action – as to be incredible.
In any case, the second prong is that plaintiff must show he was qualified for the job in question. Clearly in this case, plaintiff had more experience than Maynard, and according to him was a good and safe instructor. Winstock strongly advocated for his not being terminated, and thought it was wrong. Both Winstock and Maynard highly rated the jump that plaintiff got fired for; the defendants want to accuse plaintiff of contradicting himself, but there is no bigger contradiction than firing an employee for doing an excellent job
Third, Plaintiff was fired, and an adverse action, which can be significantly short of termination where a plaintiff endures a “materially adverse change” in the terms and conditions of employment. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000. (adverse actions can be many, “unique to a particular situation.”) Here, first, plaintiff was fired for a nearly perfect jump—that the decision maker rated 8 or 9 out of ten and the chief instructor 97 out of 100. The act of crediting a facially frivolous allegation caused him to lose his job, and significant damage to his ego wherein he cannot bring himself to do the job that he brought so much joy to so many people, including himself. As he stated in his declaration, in addition to firing him for simply stating he is gay, he
no longer feels like [he] can be [him]self working jumping, especially tandem jumping having to strap people to me and touch in so many places to perform the job. Because of what Ray Maynard did terminating me for such reasons, regardless of the bogus customer complaint, I can no longer work in this industry without fear of having been branded as some kind of gay pervert who enjoys “groping women.” Zarda Dec. at ¶¶ 10 & 47. In addition to that, plaintiff was suspended by Maynard, who stole wages from him for a week. Though not to put too fine a point on it, even the last of
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Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 5 of 10 PageID #: 2776 these three is an adverse action – there is a case that supports it but unfortunately I couldn’t find it – because he lost the use of that money. He had earned that money, and Maynard’s stealing it from him underscores his character and could possibly have resulted in plaintiff’s not being able to pay rent, a car payment, or whatever. That Maynard gave the money back demonstrates that he knew what he did was wrong, but it doesn’t erase having stolen the money from him in the first place. A criminal that is ordered to pay restitution does not erase the crime. Finally, plaintiff must show an inference of discrimination. A plaintiff need not at this stage prove that she can convince a jury of discrimination; all he needs to do is raise a de minimus inference of discrimination. De la Cruz v. New York Human Resources Administration 82 F.3d 16, 20 (2d Cir.1996). The inference does not require any particular formula, and plaintiff clearly raised it. The evidence in this case shows that, a second hand allegation for which Maynard only saw exculpatory evidence – the video – Maynard credited very quickly, or at least he said so, meaning that he relied on the excuse to fire plaintiff, which is just as bad. Additionally, plaintiff presented evidence that he did not want to be assumed heterosexual simply because he presents masculine in appearance. Finally, he likes to flaunt it up a little bit, by wearing pink, which is traditionally not a masculine color. All of these points support his claim prima facie case.
3. Pretext Assuming defendant’s can articulate a legitimate reason for discrimination, the burden then shifts to plaintiff to show pretext. I will assume that defendant has articulated a reason, but I deny that there is one. But let us assume. For the purposes of plaintiff’s Title VII cause of action that the reason for plaintiff’s termination was based in part on the allegation that he groped a woman, the pretext is obvious: (1) Plaintiff is gay and Maynard knew it; (2) Maynard did no investigation to support the second-hand complaint; (3) there were legitimate safety reasons for touching Orellana, something for which she signed a waiver; and (4) finally, defendant had used the waiver as a shield against complaints
5

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 6 of 10 PageID #: 2777 before, but in this case used it as a sword against plaintiff. All of these are at least questions of fact that would allow a jury to find pretext.
4. The Ultimate Question of Discrimination To overcome a motion for summary judgment, a plaintiff must show enough evidence that would allow a reasonable jury to find discrimination. However, disbelief of the Defendant’s proffered reasons for taking adverse action alone can be a basis to allow a jury to find that discrimination is the real reason for the termination. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001) (“only occasionally will a prima facie case plus pretext fall short of the burden a Plaintiff carries to reach a jury on the ultimate question of discrimination”). Here plaintiff has enough evidence to get to the jury the final prong, especially when it is coupled with an inference of mendacity. Cross v. New York City Transit Authority, 417 F.3d 241, 250 (2d Cir. 2005). Here Maynard’s shifting, contradictory explanations for terminating plaintiff allow that inference of mendacity. Most significantly, he dropped the groping allegation to the unemployment board, even though he had a financial interest in asserting it. Does this prove that he’s a nice guy or a liar – that’s a question for the jury, but the bottom line is that he told plaintiff one thing, then told the Department of Labor another. Furthermore, this case is highly similar to Sassaman, which the Court recognized in Your decision to preclude Professor Yoshino’s testimony, citing Sassaman, that “it’s my view . . . that that issue of stereotyping is not subtle, it’s not difficult to understand, it’s not complex, it’s very straightforward.” Transcript, 2/22/13 at 8-9. In this case there are some differences between Sassaman, and defendant pointed out that in that case, the decision maker said works to the effect that, “well she’s a woman and we have to believe her.” In this case, while Maynard didn’t say that, he did that by immediately crediting a wholly non-credible second-hand complaint. In Sassaman, there was evidence that the accuser had a relationship with the plaintiff, Sassaman at 310, and it could have led to the conclusion that it was inappropriate. In Zarda’s case, the plaintiff had no relationship with the woman, and could even remember her. Further more, unlike Sassaman – at least insofar as the decision
6

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 7 of 10 PageID #: 2778 states – plaintiff is gay. Finally, there were other reasons to discredit the allegation for which no investigation was undertaken, including that, plaintiff was required to touch the complainant’s girlfriend, and everything he did was normal, and in accord with the safety of the passenger. Additionally, Mr. Sassaman had some performance problems, id. at 309-10, whereas plaintiff had none. The second reason plaintiff meets the final prong for the jury, is that Maynard punished him for not acquiescing to the tired old joke, “I bet you didn’t think your girlfriend was going to get strapped to another guy.” Defendant and plaintiff agree that for the most part he presents as masculine and athletic, but to fire him for removing himself from the equation that because he is masculine and athletic that therefore he is straight is discrimination against him because of his gender: Maynard would have it that he has to take it like a man and let people assume he is heterosexual. By contrast, plaintiff’s argument is, how dare you presume that I am heterosexual? This is not a sexual orientation discrimination complaint, but a sex stereotype complaint. Finally, plaintiff attested to evidence that Maynard was upset with plaintiff’s use o0f the color pink. The argument that he had to put a sock over his cast in order to protect the customers from fear of injury is belied by the waiver and the Maynard safety video, both of which speak frankly about injury and death. Finally, no one is going to be fooled about a man with a sock over his cast in crutches; any person seeing plaintiff in such a state will know he is injured. Plaintiff also presented evidence that Maynard allowed a tandem instructor’s girlfriend – Tara – appear at the dropzone in crutches after she broke her back on a tandem jump. The suggestion that Maynard just didn’t want plaintiff in pink because it is a feminine color is pink is belied by these arguments – unassailable facts – and furthermore, plaintiff attested that after he had his cast removed and was wearing a boot, plaintiff saw his pink toenails and said “That’s Gay.” Defendants will argue again that this, therefore is a sexual orientation complaint, but no. However odious, the expression “That’s gay” is used as a general pejorative. Maynard was expressing his disapproval over plaintiff’s failure to conform to a sex stereotype.
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Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 8 of 10 PageID #: 2779 C. DEFENDANT FIRED PLAINTIFF, IN PART, BECAUSE HE ANNOUNCED HE WAS GAY, OFFENDING THE SENSIBILITY OF CUSTOMERS AND THAT IS NOT A LEGITIMATE REASON TO TERMINATE AN EMPLOYEE. Plaintiff agrees with defendant that the standard under Executive Law § 296 are similar to
Title VII, which presents a problem for defendant. No matter if Maynard knew that plaintiff was gay when he was hired, raising the “same actor inference,” in this case, Maynard was not acting only on his own biases, but on those of his customers. In other words, defendant argues that plaintiff was terminated because he made a customer "uncomfortable." However, this "discomfort" was, in part, telling the customer that he is gay. It is now, however, “widely accepted that a company's desire to cater to the perceived [discriminatory] preferences of its customers is not a defense under” antidiscrimination laws. Chaney v. Plainfield Health Care Ctr., 612 F.3d 908, 913 (7th Cir.2010). Therefore, plaintiff’s stating that he was gay – something that the Court has ruled no juror can believe or otherwise be struck for cause – was a factor in his termination. Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 114 (2d Cir. 2007). As such, plaintiff has established discrimination as a matter of law.
D. DEFENDANT OWES PLAINTIFF A MINIMUM WAGE.
Imagine a job that advertised the possibility of a big salary, but no guarantee. That is essentially what the defendants argue in asserting that “piecework” is a legitimate inquiry. The Federal minimum wage laws do not apply to New York, which offers a higher minimum wage on an hourly basis. If plaintiff stays all day and makes nothing, he is entitled to minimum wage for that, and defendant has the obligation to track hours, and sign in sheets, and know when their employees are working or not. See Matter of Bae v. Industrial Bd. of Appeals, 2013 N.Y. App. Div. LEXIS 1941 (1st Dep't 2013) (“Petitioners admit that they maintained no records of Aydin's hours for the relevant time period; they attempted to reconstruct those hours. The Board was entitled to credit Aydin's testimony and to discredit petitioners' reconstruction, which was based upon a series of estimates and extrapolations that rested on dubious or unsubstantiated
8

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 9 of 10 PageID #: 2780 assertion”) In Bae, as here, Maynard kept no records, and plaintiff did. He is owed his minimum wage for the days in which he made no money.
E. DEFENDANT SHOULD BE SANCTIONED FOR A WHOLLY INADEQUATE ELECTRONIC SEARCH AND A FAILURE TO KEEP ELECONTRIC RECORDS.
Maynard told Callanan to do an electronic search, but he has no idea what she did. Callana testified that she did some electronic search, but not on every computer, and before the company had a main server. In the end, plaintiff was able to produce electronic evidence that favored his case. These three factors demonstrate the classic scenario in which defendants have lost or done a lackadaisical search that the court cannot condone. The Court should impose sanctions in the form of an adverse inference. See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). See also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 113 (2d Cir. Conn. 2002) (“discovery sanctions, including an adverse inference instruction, may be imposed upon a party that has breached a discovery obligation not only through bad faith or gross negligence, but also through ordinary negligence.”) Here the defendants have no idea what they did and cannot explain how a 2009 document – one that praises his performance -- came into plaintiff’s possession but not theirs. Under the circumstances, an adverse inference should be granted, or a lousy search like the one performed here will be come standard, and parties will not get evidence they are entitled to.
F. Hostile Work Environment Plaintiff’s claim herein is not his strongest, but the evidence presented demonstrates enough to get to the jury. That plaintiff has thick skin should not count against him. The jokes bothered him, even if they were not malicious.
9

Case 2:10-cv-04334-JFB-AYS Document 131 Filed 04/09/13 Page 10 of 10 PageID #: 2781

CONCLUSION

For these reasons and for all reasons set forth in the evidence submitted, defendants’ motion

should be denied and plaintiff’s granted.

Dated:

New York, New York April 9, 2013

/s/ GREGORY ANTOLLINO Attorney for Plaintiffs

10

 
 Case 2:10-cv-04334-JFB-AYS Document 145 Filed 03/28/14 Page 1 of 2 PageID #: 2922

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

:

DONALD ZARDA,

:

:

Plaintiff,

:

:

– against –

:

:

ALTITUDE EXPRESS, INC., et al.

:

:

Defendants.

:

:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

ORDER 10-CV-4334 (JFB)(ARL)

JOSEPH F. BIANCO, District Judge:

For the reasons set forth on the record during the telephone conference on March 28,

2014, IT IS HEREBY ORDERED that:

(1) Defendants’ motion for summary judgment (see Docket No. 109) is granted in part

and denied in part. Specifically, the motion is denied with respect to the sexual orientation

discrimination claim based on his termination under New York State law, and the minimum

wage claim under New York State law. The motion is granted as to the gender stereotype

discrimination, hostile work environment, and overtime claims.

(2) Plaintiff’s motion for partial summary judgment (Docket No. 132) is denied in its

entirety.

(3) Defendants’ motion to strike a portion of plaintiff’s reply memorandum (Docket No.

139) is denied.

(4) Plaintiff shall submit his Second Amended Complaint, including the amount-in-

controversy allegation, by March 31, 2014. Defendants’ motion to dismiss, if any, shall be filed

by April 15, 2014. Plaintiff’s opposition shall be due by April 25. Defendants’ reply shall be due

by May 2.

Case 2:10-cv-04334-JFB-AYS Document 145 Filed 03/28/14 Page 2 of 2 PageID #: 2923

(5) The parties shall submit a joint pretrial order by June 2, 2014.

SO ORDERED.

Dated:

March 28, 2014 Central Islip, NY

__________________ JOSEPH F. BIANCO UNITED STATES DISTRICT JUDGE

 
 Case 2:10-cv-04334-JFB-AYS Document 146 Filed 03/28/14 Page 1 of 14 PageID #: 2924

UNITED	  STATES	  DISTRICT	  COURT	  

EASTERN	  DISTRICT	  OF	  NEW	  YORK	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	  

	  

	  

	  

	   SECOND	  

DONALD	  ZARDA,	  

	  

	   AMENDED	  

	  

	   	  

	  

	   COMPLAINT	  

	  

	  

Plaintiff,	  

	  

	   10-­‐cv-­‐04334-­‐JFB	   	  

	  

	  

	  

	  

	  

	  	   -­‐against-­‐	  

	  	  	   	   JURY	  TRIAL	  	  

	  

	   	  

	  

	   DEMANDED	   	  

ALTITUDE	  EXPRESS,	  INC.,	  	  

dba	  Skydive	  Long	  Island,	  and	  RAY	  MAYNARD,	  	  

	  	   	  

	  

Defendants.	  

	  

-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐-­‐X	  

	  

	   Plaintiff	  hereby	  alleges	  upon	  personal	  knowledge	  and	  information	  and	  

belief	  as	  follows:	  

NATURE	  OF	  THIS	  ACTION	  

1. This	  action	  is	  brought	  by	  Plaintiff,	  a	  gay	  man,	  to	  recover	  damages	  for	  

Defendants’	  discriminatory	  and	  otherwise	  illegal	  conduct	  in,	  among	  other	  

things,	  discharging	  him	  because	  of	  a	  homophobic	  customer.	  

THE	  PARTIES	  

2. Plaintiff	  at	  the	  time	  of	  the	  filing	  of	  this	  complaint	  was	  a	  citizen	  of	  the	  State	  

of	  Missouri	  and	  is	  currently	  a	  citizen	  of	  the	  State	  of	  Texas.	  The	  amount	  in	  

controversy	  concerning	  the	  dispute	  -­‐	  including	  merely	  those	  claims	  that	  

survived	  summary	  judgment	  -­‐	  exceeds	  $75,000.	  	  	  

	  

1	  

Case 2:10-cv-04334-JFB-AYS Document 146 Filed 03/28/14 Page 2 of 14 PageID #: 2925

3. Defendants	  Altitude	  Express,	  Inc.,	  operating	  as	  “Skydive	  Long	  Island”	  in	   Calverton,	  New	  York	  is	  a	  corporation	  organized	  under	  the	  laws	  of	  the	  State	  of	   New	  York,	  located	  in	  Suffolk	  County,	  and	  operates	  as	  a	  “drop	  zone,”	  i.e.,	  a	  place	   where	  individuals	  can	  come	  to	  Skydive	  under	  the	  close	  supervision	  of	   experienced	  Skydive	  instructors.	   4. Defendant	  Ray	  Maynard	  is	  the	  Chief	  Executive	  Officer	  of	  Skydive	  Long	   Island	  and,	  upon	  information	  and	  belief,	  its	  sole	  shareholder.	  Upon	   information	  and	  belief	  he	  is	  a	  citizen	  of	  New	  York.	   5. Plaintiff	  is	  an	  experienced	  Tandem	  and	  Freefall	  (i.e.,	  Skydive)	  instructor,	   who	  was	  an	  employee	  at	  Skydive	  Long	  Island	  for	  various	  summers	  in	  the	  last	   decade	  until	  his	  termination	  in	  July	  2010.	  	  	  
JURISDICTION	  AND	  VENUE	   6. Jurisdiction	  is	  proper	  pursuant	  to	  28	  U.S.C.	  §	  1331	  in	  that	  this	  action	   arises	  under	  the	  Constitution	  and	  laws	  of	  the	  United	  States,	  among	  them	  Title	   VII	  of	  the	  Civil	  Rights	  Act	  of	  1964	  as	  amended	  and	  the	  Fair	  Labor	  Standards	   Act.	  Jurisdiction	  is	  also	  independently	  predicated	  on	  diversity	  of	  citizenship.	   7. Venue	  is	  properly	  placed	  in	  this	  district	  pursuant	  to	  28	  U.S.C.	  §	  1391(c)	  in	   that	  Defendants	  Skydive	  Long	  Island	  is	  deemed	  to	  reside	  in	  this	  judicial	   district.	  
FACTUAL	  ALLEGATIONS	  UNDERLYING	  PLAINTIFF'S	  CLAIMS	  

	  

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8. Plaintiff	  repeats	  and	  realleges	  the	  allegations	  set	  forth	  in	  all	  previous	   paragraphs	  as	  if	  fully	  set	  forth	  herein.	   9. Plaintiff	  was	  employed	  at	  Altitude	  Express,	  Inc.,	  dba	  Skydive	  Long	  Island	   (hereinafter	  “Skydive	  Long	  Island”)	  as	  a	  Tandem	  &	  Accelerated	  Freefall	   Instructor	  in	  the	  summers	  of	  2001,	  2009	  and	  2010.	  Altitude	  Express	  has	   approximately	  20-­‐30	  employees.	  	   10.	   Plaintiff	  is	  has	  been	  a	  licensed	  instructor	  in	  this	  field	  since	  1995.	   He	  has	  participated	  in	  3500	  jumps	  over	  the	  course	  of	  his	  distinguished	   career.	  	  	   11.	   He	  worked	  for	  the	  defendants	  in	  the	  summers	  of	  2001,	  2009	  and	   2010.	  Skydiving	  is	  a	  seasonal	  sport	  and	  defendants	  operate	  mostly	  in	   the	  warmer	  weather,	  although	  not	  exclusively	  so.	   12.	   While	  employed	  by	  Skydive	  Long	  Island,	  plaintiff	  was	  expected	  to	   be	  at	  work,	  seven	  days	  a	  week,	  until	  released.	  	   13.	   The	  hours	  of	  operation	  were	  either	  7:30	  AM	  to	  sunset	  or	  9:30	  AM	   to	  sunset.	  	   14.	   Plaintiff	  was	  expected	  not	  to	  leave	  the	  premises	  in	  case	  a	  potential	   customer	  came,	  unless	  it	  was	  raining.	  	   15.	   Although	  expected	  to	  be	  on	  the	  premises	  approximately	  twelve	   (or	  more)	  hours	  per	  day,	  plaintiff	  was	  only	  paid	  per	  jump.	  	  

	  

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16.	   Some	  days	  went	  by	  when	  he	  would	  be	  there	  all	  day	  and	  not	  make	  
a	  dime,	  not	  even	  minimum	  wage	  for	  the	  hours	  he	  spent	  at	  work	  at	  his	  
employer’s	  insistence.	  	  
17.	   A	  skydive	  is	  a	  forcibly	  intimate	  experience,	  for	  the	  safety	  of	  the	  
passenger.	  Novices	  who	  yearn	  for	  the	  thrill	  of	  a	  skydive	  cannot	  do	  so	  on	  
their	  own,	  and	  thus	  the	  instructor	  must	  strap	  himself	  hip-­‐to-­‐hip	  and	  
shoulder-­‐to-­‐shoulder	  with	  the	  client.	  	  
18.	   Because	  of	  this,	  before	  they	  dive,	  students	  at	  Skydive	  Long	  Island	  
must	  sign	  a	  release	  that	  contains	  the	  following	  language:	  
If	  I	  am	  making	  a	  student	  jump,	  I	  understand	  that	  I	  will	  be	  wearing	  a	   harness	  which	  will	  need	  to	  be	  adjusted	  by	  the	  jumpmaster.	  If	  my	   jump	  is	  a	  tandem	  jump,	  I	  understand	  that	  the	  tandem	  master	  will	   attach	  my	  harness	  to	  his	  and	  that	  this	  will	  put	  my	  body	  in	  close	   proximity	  to	  that	  of	  the	  tandem	  master.	  I	  specifically	  agree	  to	  this	   physical	  contact	  between	  the	  tandem	  master	  and	  myself.	  	   	   19.	   Before	  the	  client	  and	  the	  instructor	  jump	  out	  of	  the	  plane,	  the	  
client	  is	  typically	  sitting	  on	  the	  instructor’s	  lap.	  The	  experience	  is	  
typically	  tense	  for	  a	  novice,	  who	  is	  about	  to	  jump	  out	  of	  the	  plane	  with	  a	  
stranger	  strapped	  to	  him	  or	  her.	  	  
20.	   Notwithstanding	  the	  waiver,	  in	  order	  to	  break	  the	  ice	  and	  make	  
the	  client	  more	  comfortable,	  instructors	  often	  make	  light	  of	  the	  intimate	  
situation	  by	  making	  a	  joke	  about	  it.	  	  

	  

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21.	   For	  example,	  when	  a	  man	  is	  strapped	  to	  another	  man,	  plaintiff	   witnessed	  instructors	  saying	  something	  like,	  “I	  bet	  you	  didn’t	  know	  you	   were	  going	  to	  be	  strapped	  so	  close	  to	  a	  man.”	  Plaintiff	  also	  heard	   instructors	  state,	  in	  reference	  to	  a	  budge	  protruding	  from	  the	   equipment,	  “That’s	  the	  straps	  you’re	  feeling.”.	   22.	   On	  more	  than	  one	  occasion,	  plaintiff	  heard	  straight	  instructors	   say,	  jokingly,	  when	  strapped	  to	  male	  clients,	  “Don’t	  worry,	  I’m	  a	   lesbian.”	  Or,	  when	  a	  straight	  man	  was	  strapped	  to	  a	  straight	  man	   (especially	  when	  his	  girlfriend	  was	  present),	  the	  instructor	  might	  say,	   “Does	  you’re	  girlfriend	  know	  that	  you’re	  gay?”	  	   23.	   This	  was	  an	  openly	  tolerated	  form	  of	  banter.	  Plaintiff,	  as	  an	  openly	   gay	  man	  was	  often	  the	  butt	  of	  jokes	  about	  his	  sexual	  orientation.	  He	  had	   mixed	  feelings	  about	  that,	  but	  was	  not	  troubled	  when	  sexual	  banter	  was	   a	  way	  of	  breaking	  the	  ice	  in	  a	  tense	  situation.	  On	  occasion,	  over	  the	   years,	  when	  he	  was	  tightly	  strapped	  to	  a	  woman	  he	  might	  say	   something	  like,	  “You	  don’t	  have	  to	  worry	  about	  us	  being	  so	  close	   because	  I’m	  gay.”	  	   24.	   This	  was	  never	  a	  problem	  until	  one	  homophobic	  customer	   complained	  about	  it.	  On	  June	  18,	  2010,	  plaintiff	  was	  suspended	  for	  

	  

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making	  this	  remark	  to	  a	  woman	  whose	  name,	  upon	  information	  and	   belief,	  is	  Rosanna.	  	   25.	   It	  was	  known	  at	  work	  that	  plaintiff	  is	  gay	  and	  he	  was	  open	  about	   it.	  Notwithstanding	  this,	  however,	  the	  terms	  and	  conditions	  of	   employment	  were	  not	  the	  same	  as	  compared	  between	  plaintiff	  and	   other	  similarly	  situated	  employees.	   26.	   Ray	  Maynard	  was	  hostile	  to	  any	  expression	  of	  sexual	  orientation	   that	  did	  not	  conform	  to	  sex	  stereotypes.	  Plaintiff	  has	  a	  typically	   masculine	  demeanor,	  but	  as	  one	  example,	  he	  criticized	  plaintiff’s	   wearing	  of	  the	  color	  pink	  at	  work.	  Women	  at	  the	  workplace	  were	   allowed	  to	  wear	  pink,	  and	  did	  without	  criticism.	  	   27.	   On	  one	  occasion,	  for	  example,	  plaintiff	  broke	  his	  ankle	  and	  had	  to	   wear	  a	  cast.	  It	  so	  happened	  that	  the	  color	  of	  the	  cast	  plaintiff	  chose	  was	   pink.	  When	  Ray	  saw	  the	  pink	  cast	  for	  the	  first	  time	  he	  scoffed	  at	  it	  and	   said,	  “That	  looks	  gay!”	  Later,	  at	  a	  staff	  meeting	  he	  said,	  “If	  you’re	  going	   to	  remain	  here	  for	  the	  day,	  you’re	  going	  to	  have	  to	  paint	  that	  black,”	   pointing	  to	  plaintiff’s	  cast.	  	  It	  was	  not	  a	  joke.	   28.	   Plaintiff’s	  toenails	  were	  also	  painted	  pink,	  which	  at	  the	  time	  was	   plaintiff’s	  preference.	  Women	  often	  wore	  open-­‐toed	  sandals	  to	  work,	  as	   well	  as	  pink	  toenail	  polish.	  	  

	  

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29.	   Additionally,	  many	  other	  instructors	  were	  barefoot	  at	  the	  drop	   zone.	  When	  Ray	  saw	  plaintiff’s	  pink	  toenail	  polish,	  however,	  he	  insisted	   that	  plaintiff	  wear	  a	  sock	  and	  cover	  up	  his	  foot.	   30.	   Plaintiff	  would	  have	  begrudgingly	  tolerated	  these	  backwards	   attitudes	  towards	  men	  and	  their	  use	  of	  certain	  colors,	  had	  plaintiff	  not	   been	  fired	  for	  expressing	  to	  a	  customer	  that	  he	  was	  gay.	   31.	   	  Ray	  openly	  tolerated	  men	  discussing	  women	  and	  their	  physical	   attributes.	  Specifically,	  Ray	  and	  the	  men	  at	  the	  office	  would	  ogle	  at	   women’s	  breasts,	  including	  on	  videos	  that	  the	  company	  had	  procured	   for	  passengers	  who	  had	  hired	  the	  company	  for	  a	  joy	  ride	  skydive	  with	   an	  accompanying	  video.1	  Men	  often	  talked	  of	  their	  sexual	  exploits,	  and	   Ray	  openly	  discussed	  his	  problematic	  marriage.	  	   32.	   Plaintiff	  mentioning	  the	  fact	  that	  he	  is	  gay	  to	  a	  passenger,	   however,	  got	  him	  fired.	   33.	   In	  his	  termination	  interview,	  Ray	  said	  that	  plaintiff	  was	  being	   fired	  because	  plaintiff	  had	  discussed	  his	  “personal	  escapades”	  outside	  of	   the	  office	  with	  a	  passenger	  (Rosanna).	  	   34.	   This	  was	  completely	  untrue	  plaintiff	  merely	  stated	  he	  was	  gay.	  	   35.	   Being	  gay	  is	  not	  an	  escapade;	  it	  is	  an	  immutable	  condition.	  
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1	  Customers	  who	  hired	  Altitude	  were	  referred	  to	  as	  “passengers.”	  

	  

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36.	   All	  of	  the	  men	  at	  Altitude	  made	  light	  of	  the	  intimate	  nature	  of	   being	  strapped	  to	  a	  member	  of	  the	  opposite	  sex.	  Plaintiff	  was	  fired,	   however,	  because	  the	  levity	  he	  used	  honestly	  referred	  to	  his	  sexual	   orientation	  and	  did	  not	  conform	  to	  the	  straight	  male	  macho	  stereotype.	  	   37.	   Mentioning	  one’s	  sexual	  orientation	  is	  as	  much	  a	  protected	   activity	  as	  mentioning	  to	  someone	  that	  one	  is	  Catholic,	  Scottish,	  or	   Hispanic.	   38.	   Ray	  made	  another	  statement	  in	  defense	  of	  his	  termination	  of	   plaintiff,	  including	  that	  plaintiff	  had	  allegedly	  touched	  Rosanna	   inappropriately,	  but	  he	  knew	  this	  to	  be	  a	  lie,	  as	  plaintiff	  is	  gay	  and	   Rosanna	  would	  have	  to	  be	  touched	  in	  order	  to	  protect	  her	  life.	  	   39.	   Later,	  although	  he	  could	  have	  used	  the	  “touching”	  as	  a	  basis	  to	  get	   plaintiff’s	  unemployment	  benefits	  denied,	  he	  did	  not	  and	  merely	  alleged	   that	  plaintiff	  should	  not	  get	  unemployment	  because	  he	  provided	   information	  of	  a	  “personal	  nature,”	  or	  words	  to	  that	  effect,	  to	  Rosanna.	   40.	   The	  “personal	  information”	  revealed	  was	  that	  plaintiff	  is	  gay;	   Maynard	  argued	  to	  the	  Unemployment	  Division	  that	  this	  was	   “misconduct”	  that	  should	  disqualify	  plaintiff	  from	  benefits.	  	   41.	   Unemployment	  disagreed	  and	  plaintiff	  was	  awarded	  benefits.	   Neither	  Maynard	  nor	  Unemployment	  mentioned	  anything	  in	  connection	  

	  

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with	  the	  alleged	  touching,	  either	  because	  it	  did	  not	  happen	  or,	  in	  the	   alternative,	  even	  Maynard	  did	  not	  believe	  it.	  	   42.	   It	  is	  unknown	  to	  plaintiff	  what	  Rosanna	  said	  before	  this	  complaint	   arose,	  but	  she	  did	  not	  complain	  to	  Maynard,	  merely	  said	  something	  to	   her	  boyfriend,	  who	  relayed	  it	  to	  Maynard,	  who	  immediately	  suspended	   plaintiff	  and	  docked	  his	  pay	  because	  he	  refunded	  the	  boyfriend’s	  money.	  	   43.	   The	  fact	  that	  Rosanna	  would	  simultaneously	  complain	  that	   plaintiff	  was	  gay	  and	  that	  he	  touched	  her	  inappropriately	  underscores	   the	  facially	  pretextual	  manner	  of	  this	  allegation,	  especially	  in	  light	  of	  the	   release	  that	  all	  passengers	  must	  sign,	  acknowledging	  that	  they	  will	  be	  in	   close	  bodily	  contact	  with	  instructors,	  and	  especially	  since	  plaintiff	  was	   regarded	  as	  an	  excellent	  skydive	  instructor,	  even	  by	  Maynard.	   44.	   Maynard,	  however,	  did	  not	  even	  investigate	  Rosanna’s	  allegations	   by	  inquiring	  of	  plaintiff’s	  side	  of	  the	  story.	  He	  did	  not	  question	  plaintiff	   about	  the	  allegations	  –	  again,	  assuming	  she	  made	  them	  –	  but	  decided	  to	   accept	  them	  as	  true	  because,	  after	  all,	  she	  was	  a	  woman,	  and	  therefore	   would	  give	  Maynard	  cover	  for	  firing	  plaintiff	  since	  a	  woman,	  in	  general,	   would	  be	  more	  likely	  to	  be	  believed	  in	  the	  context	  of	  a	  complaint	  about	   inappropriate	  touching	  by	  a	  man.	  

	  

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45.	   Even	  though	  there	  was	  a	  videotape	  of	  the	  jump	  that	  showed	  no	   inappropriate	  touching,	  Maynard	  dismissed	  said	  evidence	  and	   purposely	  lost	  custody	  of	  the	  tape	  so	  that	  plaintiff	  could	  not	  use	  it	  in	  his	   defense.	   46.	   In	  all,	  the	  allegation	  of	  touching,	  if	  it	  were	  even	  made	  by	  Rosanna,	   was	  a	  false	  pretext	  for	  plaintiff’s	  termination,	  which	  happened	  because	   of	  one	  homophobic	  customer’s	  complaint	  about	  being	  near	  a	  gay	  person	   and	  of	  because	  of	  plaintiff’s	  failure	  to	  conform	  to	  stereotypical	  gender	   roles	  for	  men.	   47.	   Maynard	  knew	  that	  plaintiff	  is	  a	  homosexual	  and	  would	  have	  no	   motive	  to	  touch	  a	  female	  passenger	  in	  any	  manner	  other	  than	  to	  protect	   her	  safety	  in	  accordance	  with	  proper	  procedures.	  	   48.	   Maynard	  knew	  that	  Rosanna	  had	  signed	  a	  release	  wherein	  she	   knew	  she	  would	  in	  close	  bodily	  contact	  with	  an	  instructor.	  	   49.	   Maynard’s	  reaction	  to	  Rosanna’s	  alleged	  complaint	  –	  without	  even	   as	  much	  as	  asking	  for	  plaintiff’s	  side	  of	  the	  story	  -­‐-­‐	  is	  an	  instance	  of	  sex	   stereotyping,	  insofar	  as	  it	  validates	  a	  woman’s	  complaint	  against	  a	  man	   whereas	  a	  man’s	  complaint	  against	  a	  woman	  –	  gay	  or	  straight	  –	  would	   never	  have	  been	  accorded	  any	  credence	  in	  similar	  circumstances.	  Ray	   knew	  this,	  yet	  he	  was	  more	  than	  happy	  to	  use	  what	  he	  knew	  to	  be	  a	  

	  

10	  

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patently	  false	  touching	  complaint	  against	  a	  man	  as	  a	  pretext	  for	  firing	   for	  being	  –	  and	  saying	  –	  that	  plaintiff	  is	  gay.	  	   50.	   In	  the	  alternative,	  if	  Maynard	  made	  up	  the	  allegation	  of	  touching,	   it	  was	  meant	  to	  bolster	  his	  justification	  for	  terminating	  plaintiff	  for	   stating	  he	  is	  gay.	  Maynard’s	  invoking	  a	  sex	  stereotype	  –	  i.e.,	  that	  a	   woman	  who	  complains	  of	  being	  touched	  by	  a	  man	  must	  be	  believed	   without	  investigation	  –	  in	  order	  to	  justify	  an	  unlawful	  termination	  is	  just	   as	  bad	  as	  if	  the	  sex	  stereotype	  originated	  in	  Rosanna’s	  mind	  in	  order	  to	   give	  credence	  to	  her	  frivolous	  complaint	  about	  being	  told	  that	  someone	   is	  gay.	  Plaintiff	  now	  sues	  for	  relief.	  
FIRST	  CAUSE	  OF	  ACTION	   DISCRIMINATION	  UNDER	  TITLE	  VII	   	   51.	  	   Plaintiff	  repeats	  and	  realleges	  the	  allegations	  set	  forth	  in	  all	  previous	   allegations	  as	  if	  fully	  set	  forth	  herein.	   52.	   Plaintiff	  was	  fired	  because	  his	  behavior	  did	  not	  conform	  to	  sex	   stereotypes	  and	  such	  actions	  were	  in	  violation	  of	  Title	  VII.	  	   53.	  	   By	  virtue	  of	  the	  foregoing,	  Plaintiff	  has	  been	  damaged.	  

	  

11	  

Case 2:10-cv-04334-JFB-AYS Document 146 Filed 03/28/14 Page 12 of 14 PageID #: 2935
SECOND	  CAUSE	  OF	  ACTION	   SEXUAL	  ORIENTATION	  DISCRIMINATION	  UNDER	  THE	  NEW	  YORK	  
STATE	  HUMAN	  RIGHTS	  LAW	   	   54.	  	   Plaintiff	  repeats	  and	  realleges	  the	  allegations	  set	  forth	  in	  all	  previous	  
allegations	  as	  if	  fully	  set	  forth	  herein.	  
55.	   Plaintiff	  was	  fired	  because	  of	  his	  sexual	  orientation.	  
56.	   Such	  actions	  were	  in	  violation	  of	  the	  Executive	  Law	  of	  the	  State	  of	  New	  
York.	  	  
57.	  	   By	  virtue	  of	  the	  foregoing,	  Plaintiff	  has	  been	  damaged.	  
THIRD	  CAUSE	  OF	  ACTION	   GENDER	  DISCRIMINATION	  UNDER	  THE	  NEW	  YORK	  STATE	  HUMAN	  
RIGHTS	  LAW	   	   58.	  	   Plaintiff	  repeats	  and	  realleges	  the	  allegations	  set	  forth	  in	  all	  previous	  
allegations	  as	  if	  fully	  set	  forth	  herein.	  
59.	   Plaintiff	  was	  fired	  because	  his	  behavior	  did	  not	  conform	  to	  sex	  
stereotypes.	  
60.	   Such	  actions	  were	  in	  violation	  of	  the	  New	  York	  State	  Human	  Rights	  Law.	  	  
61.	  	   By	  virtue	  of	  the	  foregoing,	  Plaintiff	  has	  been	  damaged.	  
FOURTH	  CAUSE	  OF	  ACTION	   VIOLATION	  OF	  THE	  NEW	  YORK	  MINIMUM	  WAGE	  LAW	   	  	   62.	  	   Plaintiff	  repeats	  and	  realleges	  the	  allegations	  set	  forth	  in	  all	  previous	  
allegations	  as	  if	  fully	  set	  forth	  herein.	  

	  

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63.	  	   At	  all	  material	  times	  herein	  Defendants	  failed	  to	  comply	  with,	  inter	  

alia,	  NYLL	  §	  663(1)	  and	  12	  NYCRR	  §	  142-­‐2.1	  in	  that	  Plaintiff	  

consistently	  worked	  for	  Defendants	  without	  being	  paid	  even	  a	  minimum	  

wage	  for	  hours	  in	  which	  there	  were	  no	  paying	  customers.	  	  

64.	  	   Upon	  information	  and	  belief,	  Defendants	  were	  at	  all	  material	  times	  

herein	  aware	  that	  minimum	  wage	  is	  mandatory.	  	  

65.	  	   Upon	  information	  and	  belief,	  Defendants’	  non-­‐payment	  of	  

minimum	  wages	  to	  Plaintiff	  was	  willful.	  	  

66.	  	   Based	  upon	  the	  foregoing,	  Defendants,	  for	  consistently	  violating	  

New	  York’s	  Labor	  Law	  and	  its	  implementing	  regulations	  are	  liable	  on	  

Plaintiff’s	  second	  cause	  of	  action	  in	  an	  amount	  to	  be	  determined	  at	  trial,	  

plus	  a	  100%	  statutory	  penalty	  and/or	  liquidated	  damages,	  attorney’s	  

fees	  and	  costs.	  	  	  

	  	   WHEREFORE,	  Plaintiff	  demands	  as	  follows:	  

A.	  

Compensatory	  damages	  in	  excess	  of	  the	  jurisdictional	  

amount	  required	  of	  this	  court;	  

B.	  

Punitive	  damages;	  

C.	  

Cost	  of	  suit	  and	  attorneys	  fees;	  

D.	   	   Liquidated	  damages;	  

	  

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E.	   	   Such	  other	  relief	  as	  the	  Court	  may	  deem	  just	  and	  proper.	  

Dated:	   New	  York,	  New	  York	  

	  

March	  28,	  2014	  

	  

	  

	   	   	   	  

	  

	   	   	   	  

	  

	   	   	   	  

	  

	   	   	   	  

	   /s/	   	   	   	   	   GREGORY	  ANTOLLINO	  GA	  5950	   Attorney	  for	  Plaintiff	   275	  Seventh	  Avenue	  Suite	  705	   New	  York,	  NY	  10001	  

	  

14	  

 
 15-3775-cv

United States Court of Appeals
For the Second Circuit

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.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF OF 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 MELISSA ZARDA and WILLIAM ALLEN MOORE, JR.

ERIN BETH HARRIST CHRISTOPHER DUNN NEW YORK CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300
FATIMA GOSS GRAVES NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, N.W., Suite 800 Washington, District of Columbia 20036 (202) 588-5180

RIA TABACCO MAR LESLIE COOPER JAMES D. ESSEKS Lesbian Gay Bisexual Transgender
& HIV Project LENORA M. LAPIDUS GILLIAN L. THOMAS Women’s Rights Project AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2500

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1 and 29, the undersigned counsel of record certifies that none of the amici curiae is a nongovernmental entity with a parent corporation or a publicly held corporation that owns 10% or more of its stock. This representation is made in order that the judges of this Court may evaluate possible disqualification or recusal.

Dated: June 26, 2017

s/ Ria Tabacco Mar RIA TABACCO MAR American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 rmar@aclu.org
Attorney for Amici Curiae

i

TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... i TABLE OF AUTHORITIES ................................................................................... iii INTERESTS OF AMICI CURIAE .............................................................................1 SUMMARY OF THE ARGUMENT ........................................................................1 ARGUMENT .............................................................................................................4
I. Since Title VII’s enactment, courts consistently have adopted an expansive interpretation of what constitutes discrimination “because of sex.” .................................................................................................................4
II. Title VII’s prohibition against sex discrimination protects all employees, including lesbian, gay, and bisexual people. .................................................15 A. Discrimination because of sexual orientation is sex discrimination under the plain meaning of the term “sex.”..............................................15 B. Discrimination because of sexual orientation involves impermissible sex-role stereotyping. ...............................................................................18 C. Discrimination against people who have or seek to have same-sex relationships is associational discrimination. ...........................................21
III.Simonton should be overruled in light of the Supreme Court’s expansive interpretation of what constitutes discrimination “because of sex.” .............23
CONCLUSION ........................................................................................................29 CERTIFICATE OF COMPLIANCE.......................................................................31 CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS.............................32 APPENDIX: INTERESTS OF AMICI CURIAE ................................................. A-1
ii

Cases

TABLE OF AUTHORITIES

Am. Newspaper Publishers Ass’n v. Alexander, 294 F. Supp. 1100 (D.D.C. 1968)........................................................................8
AT&T Corp. v. Hulteen, 556 U.S. 701 (2009)...........................................................................................10
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) ..............................................................................28
Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015)........................................................................... 16, 19, 22
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977)...........................................................................12
Barnes v. Train, No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974)......................................12
Boutillier v. Hartford Pub. Sch., No. 3:13CV1303 WWE, 2014 WL 4794527 (D. Conn. Sept. 25, 2014)..........20
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016)................................................................22
Bradwell v. State, 83 U.S. 130 (1872)...............................................................................................7
Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994)...........................................................................................25
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)................................................................21
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ............................................................. 2, 15, 23, 28
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)...................................................................................... 6, 27

iii

Complainant v. Johnson, EEOC Doc. 0120110576, 2014 WL 4407457 (EEOC Aug. 20, 2014).............19
Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161 (D. Ariz. 1975) ......................................................................13
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ....................................................................... 26, 27
DeCintio v. Westchester Cty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986) ....................................................................... 23, 24
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) ...............................................................................9
Dothard v. Rawlinson, 433 U.S. 321 (1977)...................................................................................... 9, 10
EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016)................................................................20
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) .........................................................................23
Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016)................................................................25
Foray v. Bell Atl., 56 F. Supp. 2d 327 (S.D.N.Y. 1999) .......................................................... 16, 22
Gen. Electric Co. v. Gilbert, 429 U.S. 125 (1976)...........................................................................................10
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .........................................................................24
Goesaert v. Cleary, 335 U.S. 464 (1948).............................................................................................7
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .................................................................18
iv

Griggs v. Duke Power Co., 401 U.S. 424 (1971).............................................................................................9
Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ....................20
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) ..................................................................21
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) ..................................................................... passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) ..............................................................................21
Hoyt v. Florida, 368 U.S. 57 (1961)...............................................................................................8
In re Levenson, 560 F.3d 1145 (9th Cir. 2009) ...........................................................................17
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015) ............................................................16
Jefferies v. Harris Cty. Cmty. Action Ass’n, 693 F.2d 589 (5th Cir. 1982) ....................................................................... 11-12
Jernigan v. Crane, 64 F. Supp. 3d 1260 (E.D. Ark. 2014)...............................................................17
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)................................................................17
Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) ...........................................................21
Lam v. Univ. of Hawai’i, 40 F.3d 1551 (9th Cir. 1994) .............................................................................11
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) .............................................................................17
v

Lawson v. Kelly, 58 F. Supp. 3d 923 (W.D. Mo. 2014) ................................................................17
Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012) ....... 18-19
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).............................................................................................14
Miller v. Bank of Am., 418 F. Supp. 233 (N.D. Cal. 1976) ............................................................. 12, 13
Muller v. Oregon, 208 U.S. 412 (1908).............................................................................................7
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)...........................................................................................11
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983).............................................................................. 11, 15, 26
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998)................................................................................ 14, 15, 26
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)...............................................................17
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)...........................................................................................11
Philpott v. New York, No. 16 Civ. 6778 (AKH), 2017 WL 1750398 (S.D.N.Y. May 3, 2017)...........20
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)................................................................................. 6, 18, 22
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 845 (D.S.D. 2014) .....................................................................17
Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) .............................................................................9
vi

Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ........................................................................ passim
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) .............................................................................24
Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988) ................................................................................28
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) .............................................................................24
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) .................................................................... 12, 28
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).....................................................................20
Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976) .................................................................. 12, 13
Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ...........................................................................24
United Auto. Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187 (1991)...........................................................................................10
Veretto v. Donahoe, EEOC Doc. 0120110873, 2011 WL 2663401 (EEOC July 1, 2011) ................19
Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927 (C.D. Cal. 2015) ...............................................................20
Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) ...............................................................................9
Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007) .......................................................................22
Rules
29 C.F.R. § 1604.11(a) (1980).................................................................................13
vii

Statutes 42 U.S.C. § 2000e-2(a)(1)..........................................................................................4 Other Authorities 110 Cong. Rec. 2577-84 (1964).................................................................................4 Br. Amici Curiae of 128 Members of Congress, Christiansen v. Omnicom Grp.,
Inc., No. 16-748-cv, 2016 WL 3551468 (2d Cir. June 28, 2016) ......................25 Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition
of Sex Discrimination in Title VII of the 1964 Civil Rights Act, 49 J. SOUTHERN HIST. 37 (1983) ...........................................................................5 Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307 (2012). ..........................................................................5 Final Determination, Cote v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015), https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probablecause-notice.pdf ........................................................................................... 16, 22 Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19 DUQUESNE L. REV. 453 (1981) ........................................................................5 Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137 (1997) ..................................................... 4-5
viii

INTERESTS OF AMICI CURIAE1 Amici are a coalition of civil rights groups and public interest organizations committed to preventing, combating, and redressing sex discrimination and protecting the equal rights of women in the United States. Detailed statements of interest are contained in the accompanying appendix. Amici have a vital interest in ensuring that Title VII’s promise of equal employment opportunity effectively protects all people – including lesbian, gay, and bisexual persons – from invidious discrimination “because of sex.”
SUMMARY OF THE ARGUMENT This appeal presents the momentous issue of whether employers are free to discriminate against lesbian, gay, and bisexual people without violating Title VII’s historic prohibition against discrimination “because of sex.” Decades of Supreme Court history make plain that Title VII’s prohibition against discrimination because of sex has become a robust source of protection for male and female workers alike. Initially, Title VII was a vehicle for striking down employer policies and practices that literally excluded women (or men) from certain employment opportunities. It soon became clear, however, that discrimination
1 Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure and Local Rule 29.1, counsel for amici curiae state that no counsel for a party authored this brief in whole or in part, and that no person other than amici curiae, their members, or their counsel made a monetary contribution to the preparation or submission of this brief.
1

“because of sex” means much more than simply getting rid of “Help Wanted – Male” signs (or, for that matter, “Help Wanted – Female” signs). The Supreme Court has explained that sex discrimination occurs whenever an employer takes an employee’s sex into account when making an adverse employment decision. Courts have applied this principle to countless forms of employer bias, from cases involving a ban on hiring mothers of preschool-aged children to bias against Asian-American women to the failure to promote a Big Eight accounting firm partnership candidate because she was “macho.” Time and again, courts have refused to allow generalizations about men and women – or about certain types of men and women – to play any role in employment decisions.
This rich history of courts’ interpretations of Title VII, in addition to the reasons stated by Plaintiff-Appellant and articulated by Chief Judge Katzmann in his recent concurring opinion in Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017), show why discrimination on the basis of sexual orientation (also referred to as discrimination against lesbian, gay, and bisexual people) is discrimination “because of sex.” Indeed, many of the rationales advanced to exclude lesbian, gay, and bisexual employees from Title VII were also made by employers, and rejected by the courts, in cases involving equal opportunity for women. Employers who take sexual orientation into account necessarily take sex into account, because sexual orientation turns on one’s sex in relation to the sex of
2

the individuals to whom one is attracted. And bias against lesbian, gay, and bisexual people turns on the sex-role expectation that women should be attracted to only men (and not women) and vice versa. There is no principled reason to create an exception from Title VII for sex discrimination that involves sexual orientation, as the en banc Seventh Circuit, Chief Judge Katzmann, federal district courts (including district courts in the Second Circuit), and administrative agencies have recognized. This Court should come to the same conclusion.
This case presents an opportunity for the full Court to correct its outdated and unworkable interpretation of Title VII’s prohibition of discrimination “because of sex.” In 2000, a three-judge panel of this Court held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that harassment on the basis of sexual orientation is not sex-based discrimination. Yet sex stereotyping, as defined by the Supreme Court, plainly encompasses discrimination on the basis of sexual orientation. Continued reliance on Simonton’s outdated categorical exclusion has led to cramped and illogical attempts to distinguish between sex stereotyping that does not implicate sexual orientation, which is clearly prohibited by Title VII, and sex stereotyping that relates to the fact that an employee is lesbian, gay, or bisexual. This Court should now hold that there is no coherent line to be drawn between such forms of discrimination and that sexual orientation discrimination is discrimination “because of sex.”
3

ARGUMENT

I.

Since Title VII’s enactment, courts consistently have adopted an

expansive interpretation of what constitutes discrimination “because

of sex.”

This Court should overrule its decision in Simonton v. Runyon, 232 F.3d 33

(2d Cir. 2000), that discrimination on the basis of sexual orientation is not sex-

based discrimination prohibited by Title VII. In doing so, this Court should take

into account the Supreme Court’s expansive interpretation of the phrase “because

of sex” during the past fifty years.

Title VII of the Civil Rights Act of 1964 forbids employers from making

adverse decisions about hiring, firing, or the terms, conditions, or privileges of

employment because of sex. 42 U.S.C. § 2000e-2(a)(1). Unlike the prohibition

against discrimination because of race, the prohibition against discrimination

because of sex was added to the bill at the last minute, with little floor debate and

without the benefit of congressional hearings. 110 Cong. Rec. 2577-84 (1964).

Since Title VII’s enactment, this sparse record has been invoked by some to

justify limiting Title VII’s coverage solely to workplace barriers that explicitly disadvantage women as compared to men.2 Indeed, many have presumed that such

2 Even the motivations of the sex amendment’s sponsor, Representative Howard Smith of Virginia, have been the subject of intense dispute among historians, giving rise to theories that he intended the addition as a joke or as a vehicle for scotching the entire bill, which he opposed. See, e.g., Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex
4

distinctions were the only kind of discrimination “because of sex” that concerned
legislators in 1964. This interpretation is incorrect. As one scholar has explained
in a seminal law review article: “Contrary to what courts have suggested, there
was no consensus among legislators in the mid-1960s that the determination of
whether an employment practice discriminated on the basis of sex could be made
simply by asking whether an employer had divided employees into two groups
perfectly differentiated along biological sex lines.” Cary Franklin, Inventing the
“Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307, 1320,
1328 (2012).3
Given this history, it was left largely to the courts to define what is meant by
“because of sex.” Interpreting the plain meaning of these words, courts
Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137, 139-42 (1997); Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19 DUQUESNE L. REV. 453, 458-59 (1981). But as one scholar has noted, whatever Smith’s “real” motivation, it is irrelevant; the reason(s) for introducing legislation may or may not bear any relation to the reason(s) the legislature enacts it. Id. at 462-67. 3 Commentators also have noted that supporters of the sex amendment were motivated not by concern for women vis a vis men, but for white women vis a vis Black women. That is, if Title VII included only race but not sex provisions, Black women would enjoy a level of protection in the workplace that white women would not. See, e.g., Bird, supra note 2, at 155-58; Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, 49 J. SOUTHERN HIST. 37, 49-50 (1983). These historical realities militate against, not in favor of, the crabbed analysis of Title VII embodied in Simonton and related decisions.
5

consistently have interpreted Title VII’s prohibition against sex discrimination to cover a wide range of employer assumptions about women and men alike. As the Supreme Court put it nearly forty years ago, “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted). Indeed, when examined in full, the halfcentury of precedent interpreting “sex discrimination” has dismantled not just distinctions between men and women, but also those among men and among women – distinctions that for generations had confined individuals to strict sex roles at work, as well as in society.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court famously held that when an employer relies on sex stereotypes to deny employment opportunities, it unquestionably acts “because of sex.” There, the Court considered the Title VII claim of Ann Hopkins, who was denied promotion to partner in a major accounting firm – despite having brought in the most business of the eighty-seven other (male) candidates – because she was deemed “macho.” Id. at 235 (plurality opinion). To be fit for promotion, Hopkins was told, she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id.
6

As detailed in Part II.B, infra, Price Waterhouse confirms that adverse employment action based on all manner of sex stereotypes is prohibited by Title VII’s sex provision. The stereotype concerning to whom men and women “should” be romantically attracted is encompassed within this principle. But Ann Hopkins’s case was hardly the only instance in which an employer’s stereotypebased decision making was found to violate Title VII.
Among the earliest Title VII cases were those addressing – and disapproving of – the literal exclusion of women from particular employment opportunities. The sex-segregated work world of 1964 that Title VII was charged with regulating reflected longstanding assumptions about the kinds of jobs for which women (and men) were suited – physically, temperamentally, and even morally. See, e.g., Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (upholding state law preventing women from working as bartenders unless their husband or father owned the bar, because “the oversight assured through [such] ownership . . . minimizes hazards that may confront a barmaid without such protecting oversight”); Muller v. Oregon, 208 U.S. 412, 421 (1908) (sustaining state maximum-hours law for women laundry workers because “woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence”); Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (in approving under the due process clause Illinois’ law against admitting women to practice law,
7

observing that “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life”). Indeed, just three years before Title VII became law, the Court had unanimously upheld a Florida statute exempting women from jury service because of their “special responsibilities” in the home unless they affirmatively chose to register for service. Hoyt v. Florida, 368 U.S. 57, 62 (1961).
It is unsurprising, then, that prior to Title VII’s enactment, it had been routine for newspapers to separate “help wanted” advertisements into “male” and “female” sections, but the EEOC and courts found that practice illegal under the new law. See Am. Newspaper Publishers Ass’n v. Alexander, 294 F. Supp. 1100 (D.D.C. 1968). Employers’ segregation of job opportunities by sex was premised on assumptions about what work women and men can and want to do. Indeed, Title VII was enacted at a time when the workforce was divided into “women’s jobs” and “men’s jobs,” stemming largely from state “protective laws” restricting women’s access to historically male-dominated fields, but also from the resulting cultural attitudes about the sexes’ respective abilities and preferences. Just as sexspecific job listings were found to violate Title VII, so too were a variety of other policies and practices that had the purpose or effect of judging employees by their sex, not their qualifications.
8

By adopting a narrow approach to the bona fide occupational qualification (BFOQ) exception, for instance, courts assured that women and men alike would be assessed for jobs on individual merit, not group-based stereotypes. See, e.g., Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) (striking down employer policy prohibiting women from becoming station agents due to job’s physical demands); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (finding airline’s women-only rule for flight attendants unlawful discrimination); Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) (prohibiting employer policy against women working as switchmen on grounds that job required heavy lifting).
Similarly, within a few years of these decisions, the Supreme Court ruled that physical criteria that disproportionately exclude women applicants violate Title VII unless justified by business necessity; employers could no longer merely assume that “bigger is better” when it came to dangerous jobs. See Dothard v. Rawlinson, 433 U.S. 321 (1977) (unanimously extending disparate impact framework of Griggs v. Duke Power Co., 401 U.S. 424 (1971), to cover height and weight minimums for prison guards).4 The Court later relied on similar logic to
4 Although the Dothard Court upheld on BFOQ grounds Alabama’s exclusion of women from certain positions within maximum-security penitentiaries that required bodily contact with inmates, the Court emphasized that its decision should not be interpreted as endorsing an absolute male-only rule in all such jobs. Rather, the Court reiterated that the BFOQ exception was otherwise to be read narrowly; it
9

invalidate an employer’s “fetal protection policy” that barred women, but not men,
from jobs involving contact with lead – despite medical evidence showing that
men faced equal if not worse reproductive hazards. United Auto. Workers of Am.
v. Johnson Controls, Inc., 499 U.S. 187 (1991). Such a policy, said the Court,
unlawfully presumed that women were more suited to motherhood than to the
rigors, and dangers, of certain work: “It is no more appropriate for the courts than
it is for individual employers to decide whether a woman’s reproductive role is
more important to herself and her family than her economic role. Congress has left
this choice to the woman as hers to make.” Id. at 211.5
was the harrowing conditions then prevailing in Alabama’s maximum-security facilities, which were under federal court order to come into compliance with the Eighth Amendment, that made this a special case. See 433 U.S. at 335 (“In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself.”). 5 At the time Johnson Controls was decided, Title VII had been amended by the 1978 Pregnancy Discrimination Act (“PDA”). The PDA’s addition to the statute does not warrant the conclusion that Title VII’s sex provision, as originally enacted, did not encompass pregnancy discrimination, or that the law otherwise was incomplete in its substantive reach. Rather, the PDA was enacted in response to the Supreme Court’s widely-disparaged ruling in Gen. Electric Co. v. Gilbert, 429 U.S. 125 (1976), in which it found that the exclusion of pregnancy from a company’s disability benefits plan did not favor men over women, but rather, differentiated between pregnant and non-pregnant persons. Gilbert was nearly universally considered a misreading of Title VII; at the time it was decided, the EEOC, as well as all of the courts of appeals that had considered the issue, had declared pregnancy discrimination to be unlawful sex discrimination. See AT&T Corp. v. Hulteen, 556 U.S. 701, 717-18 (2009) (Ginsburg, J., dissenting). Indeed, just one year after Gilbert (and before passage of the PDA), the Supreme Court
10

Although what little floor debate occurred prior to Title VII’s passage focused on women’s second-class status in the workplace, the prohibition against discrimination “because of sex” has long been understood to ban discrimination against men as well. As the Supreme Court noted, “[p]roponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983).
In addition to protecting male employees, Title VII also has been read repeatedly to forbid discrimination against subsets of employees, resulting in a broad definition of sex discrimination that acknowledges the diversity of employees’ identities – and the equally diverse forms of sex-based bias to which they may be subjected. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam) (invalidating employer’s ban on hiring mothers of preschoolaged children, despite overall high rates of women’s employment); Lam v. Univ. of Hawai’i, 40 F.3d 1551 (9th Cir. 1994) (Asian-American woman’s Title VII sex discrimination claim viable despite evidence that white women comparators were not subjected to discrimination); Jefferies v. Harris Cty. Cmty. Action Ass’n, 693
found discrimination on the basis of pregnancy to be discrimination “because of sex” when it struck down a municipal employer’s policy of erasing women’s seniority while they were out on maternity leave. Nashville Gas Co. v. Satty, 434 U.S. 136, 142-43 (1977).
11

F.2d 589 (5th Cir. 1982) (Black woman could bring Title VII claim despite evidence that employer treated white female comparators favorably); Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) (airline’s policy of employing only unmarried female flight attendants violated Title VII).
The initial rejection and later recognition of sexual harassment as sex discrimination offers another useful lens into courts’ ever-widening understanding of what constitutes discrimination “because of sex.” Although courts understood by the early 1970s that using racial epithets or displaying racist symbols like nooses was harassment “because of race” that violated Title VII, they were slower to see sexual harassment as harassment “because of sex.” Instead, judges routinely wrote off adverse employment actions against women who had spurned their supervisors’ advances as “controvers[ies] underpinned by the subtleties of an inharmonious personal relationship.” Barnes v. Train, No. 1828-73, 1974 WL 10628, at *1 (D.D.C. Aug. 9, 1974) (emphasis added), rev’d sub nom Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); see also Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D. Cal. 1976) (sexual harassment could not be discrimination “because of sex” because “[t]he attraction of males to females and females to males is a natural sex phenomenon”), rev’d, 600 F.2d 211 (9th Cir. 1979); Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (Title VII not meant to provide a remedy “for what amounts to physical attack motivated by
12

sexual desire . . . which happened to occur in a corporate corridor rather than a back alley”), rev’d, 568 F.2d 1044 (3d Cir. 1977); Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161, 163 (D. Ariz. 1975) (supervisor’s sexual harassment was motivated not by plaintiff’s sex but by a “personal proclivity, peculiarity or mannerism”), rev’d, 562 F.2d 55 (9th Cir. 1977).
Notably, these courts buttressed their narrow readings of Title VII by referencing the limited debate that preceded Congress’s addition of the sex provision. See Miller, 418 F. Supp. at 235 (the “Congressional Record fails to reveal any specific discussions as to the amendment’s intended scope or impact”); Tomkins, 422 F. Supp. at 556-57 (sexual harassment “clear[ly] . . . without the scope of the Act,” because otherwise “we would need 4,000 federal trial judges instead of some 400”); Corne, 390 F. Supp. at 163 (given the “[little] legislative history surrounding the addition of the word ‘sex’ to the employment discrimination provisions of Title VII,” it would “be ludicrous to hold that the sort of activity involved here was contemplated by the Act”).
The jurisprudential tide began to turn in the late 1970s (as evidenced in part by the appellate reversals of the above-cited decisions), and in 1980 the EEOC updated its Guidelines on Discrimination Because of Sex to declare that sexual harassment of a female employee could not be disentangled from her sex. 29 C.F.R. § 1604.11(a) (1980). The 1980 Guidelines recognized that it is not
13

“personal” to disadvantage a female employee because of her supervisor’s sexual conduct toward her; it is illegal.
The Supreme Court continued this evolution in 1986, when it ruled that severe or pervasive conduct that creates a sexually hostile work environment violates Title VII by altering the “terms, conditions, or privileges” of employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-67 (1986). But the Vinson Court took it as a given that sexual harassment was sex discrimination; its analysis centered on whether a plaintiff’s “voluntary” acquiescence to sexual demands and her failure to lodge a formal complaint negated her Title VII claim. As the Court put it, “Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Id. at 64
Roughly a decade later, the Court extended Vinson – unanimously – to encompass same-sex sexual harassment. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79-80 (1998). In so doing, the Oncale Court rejected various attempts to define sexual harassment narrowly. For example, the Court declined to hold that whether an employee is the victim of sex (or race) discrimination turns on the sex (or race) of the harasser. Id. at 78-79. The Court likewise did away with the argument that sexual harassment must be motivated by sexual desire to be actionable under Title VII. Id. at 80-81. Rather, the Court adopted perhaps the
14

simplest test for whether discrimination had occurred: whether the conduct at issue met Title VII’s “statutory requirements,” i.e., whether the harassment occurred because of the employee’s sex. Id. at 80. The same test applies to discrimination against lesbian, gay, and bisexual employees, for the reasons explained below. II. Title VII’s prohibition against sex discrimination protects all employees,
including lesbian, gay, and bisexual people. As a remedial statute, and as illustrated by the foregoing decisions, Title VII does not prohibit only discrimination against women in favor of men. Oncale, 523 U.S. at 78. Rather, the statute protects “all individuals” from differential treatment because of their sex. Newport News, 462 U.S. at 681. This includes lesbian, gay, and bisexual individuals, as the en banc Seventh Circuit recently held and Chief Judge Katzmann recognized in his concurrence in Christiansen. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 201 (2d Cir. 2017) (Katzmann, C.J., concurring). A. Discrimination because of sexual orientation is sex discrimination
under the plain meaning of the term “sex.” Discrimination on the basis of sexual orientation is sex discrimination under the plain meaning of the term, because sexual orientation turns on one’s sex in relation to the sex of one’s partner. Consideration of an employee’s sexual
15

orientation therefore necessarily involves consideration of the employee’s sex. Hively, 853 F.3d at 345-47; Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015) (holding that “claims of sexual orientation-based discrimination are cognizable under Title VII”); Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015).
That discrimination because of sexual orientation involves impermissible consideration of sex is particularly apparent in the employee benefits context. When an employer refuses to provide insurance coverage to an employee’s samesex spouse, but would provide such benefits to a different-sex spouse, the employment benefit depends on the sex of the employee. For example, a female employee who is denied fringe benefits because she is married to a woman experiences sex discrimination, because she would be provided those benefits if she were a man married to a woman. See Final Determination, Cote v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015), https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probable-causenotice.pdf. In addition to the EEOC, several federal courts have reached the same conclusion in analogous contexts. For example, in Foray v. Bell Atlantic, the court recognized that a male plaintiff could advance a sex discrimination theory based on the denial of benefits to his same-sex partner. See 56 F. Supp. 2d 327, 329-30 (S.D.N.Y. 1999) (recognizing sex discrimination theory under Title VII and the
16

Equal Pay Act “because all things being equal, if [plaintiff’s] gender were female, he would be entitled to claim his domestic partner as an eligible dependent under the benefits plan” but dismissing both claims because plaintiff and his partner were not similarly situated to married couples (internal quotation marks omitted)); see also In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (holding that denial of benefits for same-sex spouse of federal public defender constituted discrimination on the basis of sex or sexual orientation).
Numerous federal courts have concluded that sexual orientation discrimination is sex discrimination in cases seeking the freedom to marry for same-sex couples. As Judge Berzon recognized, the Equal Protection Clause forbids marriage bans for same-sex couples as a form of impermissible sex discrimination, because “[o]nly women may marry men, and only men may marry women.” Latta v. Otter, 771 F.3d 456, 480 (9th Cir. 2014) (Berzon, J., concurring); see also Jernigan v. Crane, 64 F. Supp. 3d 1260, 1286-87 (E.D. Ark. 2014), aff’d on other grounds, 796 F.3d 976 (8th Cir. 2015); Rosenbrahn v. Daugaard, 61 F. Supp. 3d 845, 859-60 (D.S.D. 2014), aff’d on other grounds, 799 F.3d 918 (8th Cir. 2015); Lawson v. Kelly, 58 F. Supp. 3d 923, 934 (W.D. Mo. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), aff’d on other grounds, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 135 S. Ct. 265 (2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010), appeal
17

dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013); cf. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, [the Defense of Marriage Act (“DOMA”)] would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013). This reasoning applies with equal force to Title VII as it does to the Equal Protection Clause.
B. Discrimination because of sexual orientation involves impermissible sex-role stereotyping.
As the Supreme Court recognized in Price Waterhouse, the prohibition against discrimination “because of sex” is not limited to discrimination based on the fact that an individual is male or female, but also discrimination based on other aspects of a person’s sex, such as gender expression and conformity (or lack of conformity) with social sex roles. 490 U.S. at 250 (employers discriminate “because of sex” when they rely on sex-specific stereotypical beliefs, such as the notion that “a woman cannot be aggressive, or that she must not be”); id. at 256 (“[I]f an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”); see also Macy v. Holder, EEOC
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Doc. 0120120821, 2012 WL 1435995, at *6 (EEOC Apr. 20, 2012) (Title VII prohibits discrimination based “not only [on] a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity”).
While discrimination because of sexual orientation often is accompanied by explicit evidence of disparate treatment because of an individual’s failure to conform with sex stereotypes about dress and appearance, it need not be to constitute sex discrimination. See Hively, 853 F.3d at 346; Baldwin, 2015 WL 4397641, at *7-8. Since 2011, the EEOC has recognized that discrimination against lesbian, gay, and bisexual employees is unlawful to the extent that it turns on the sex-role expectation that women should be attracted to only men (and not women), and that men should be attracted to only women (and not men). See Veretto v. Donahoe, EEOC Doc. 0120110873, 2011 WL 2663401, at *3 (EEOC July 1, 2011) (Title VII prohibits adverse employment action “motivated by the sexual stereotype that marrying a woman is an essential part of being a man”); see also Complainant v. Johnson, EEOC Doc. 0120110576, 2014 WL 4407457, at *7 (EEOC Aug. 20, 2014) (collecting cases).
Because nonconformity with sex-role expectations is the very quality that defines lesbian, gay, and bisexual people, federal courts (including in this Circuit) likewise have begun to recognize that discrimination against members of those groups is a form of sex stereotyping without requiring additional evidence of
19

gender nonconformity. See, e.g., Hively, 853 F.3d at 346 (noting that the plaintiff’s same-sex attraction was “the ultimate case of failure to conform to the female stereotype”); Philpott v. New York, No. 16 Civ. 6778 (AKH), 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017) (“[B]ecause plaintiff has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII.”); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 841 (W.D. Pa. 2016) (“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”); Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927, 936 (C.D. Cal. 2015) (“[A] policy that female basketball players could only be in relationships with males inherently would seem to discriminate on the basis of gender.”); Boutillier v. Hartford Pub. Sch., No. 3:13CV1303 WWE, 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014) (denying motion to dismiss where plaintiff alleged that “she was subjected to sexual stereotyping during her employment on the basis of her sexual orientation”); Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014) (denying motion to dismiss where plaintiff alleged that “he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males”); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (denying motion to dismiss where “Plaintiff has alleged that he is ‘a
20

homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles’”); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012) (finding genuine issue of material fact under sex stereotyping theory where plaintiff failed to conform by taking his same-sex spouse’s surname after marriage); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (finding genuine issue of material fact under sex stereotyping theory where female plaintiff failed to conform by being attracted to and dating other women and not only men); see also Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”).
C. Discrimination against people who have or seek to have same-sex relationships is associational discrimination.
This Court first recognized that associational discrimination violates Title VII in Holcomb v. Iona College, which involved a white man who alleged he was fired in part because of his interracial marriage to a Black woman. 521 F.3d 130 (2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139.
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The same standard, and the same reasoning, apply to discrimination against an employee because he or she is in a relationship, or seeks to be in one, with a person of the same sex. See Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 n.2 (2d Cir. 2007) (noting that this Court “appl[ies] the same standard to both race-based and sex-based hostile work environment claims”); Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016) (applying Holcomb to same-sex relationships); Baldwin, 2015 WL 4397641, at *6-7; see also Price Waterhouse, 490 U.S. at 243 n.9 (plurality opinion) (noting that Title VII “on its face treats each of the enumerated categories exactly the same”). The employer’s disapproval of same-sex relationships depends on the employee’s sex: If the employee were of a different sex, he or she would not be in (or seek to be in) a same-sex relationship and, therefore, would not be subject to the employer’s adverse action. Cf. Foray, 56 F. Supp. 2d at 329 (“[A]ll things being equal, if [plaintiff’s] gender were female, he would be entitled to claim his domestic partner as an eligible dependent under the benefits plan.”); Final Determination, Cote v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015), https://www.glad.org/wp-content/uploads/2014/09/cote-v-walmart-probable-causenotice.pdf (a female employee is “subjected to employment discrimination [where] she was treated differently and denied benefits because of her sex, since such coverage would be provided if she were a woman married to a man”). As the
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en banc Seventh Circuit noted, this exercise “reveals that the discrimination rests of distinctions drawn according to sex” – distinctions prohibited by Title VII. See Hively, 853 F.3d at 349. III. Simonton should be overruled in light of the Supreme Court’s expansive
interpretation of what constitutes discrimination “because of sex.” Simonton was wrongly decided because it ignored the meaning of sex discrimination discussed above. The occasion of rehearing this case en banc presents an opportunity for this Court to revisit and overrule that decision in light of the history of Title VII jurisprudence described above, the Seventh Circuit’s recent en banc decision, Hively, 853 F.3d 339, and the concurring opinion by the Chief Judge in another case before it, Christiansen, 852 F.3d at 201 (Katzmann, C.J., concurring), recognizing that sexual orientation discrimination is necessarily sex discrimination within the meaning of Title VII. See also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1261 (11th Cir. 2017) (Rosenbaum, J., dissenting). This Court first held that Title VII does not prohibit sexual orientation discrimination in Simonton v. Runyon, a case brought by a postal worker who claimed he was subjected to an abusive and hostile work environment because he was gay. 232 F.3d 33. Simonton, in turn, relied in part on DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), a decision that did not involve sexual orientation discrimination at all. Rather, DeCintio involved male plaintiffs who were denied promotion in favor of a woman who was involved in a
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heterosexual relationship with their supervisor. Id. at 305. In ruling that the male applicants did not have a Title VII claim, this Court observed that “[s]ex, when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity.” Id. at 306 (internal quotation marks omitted).
Simonton relied on this language from DeCintio to rule that Title VII does not proscribe discrimination based on sexual orientation, 232 F.3d at 36, but its reliance was misplaced. First, the language was taken out of context; the “sexual activity” at issue was the male employer’s romantic relationship with a woman. More significantly, it was inconsistent with Price Waterhouse, in which the Supreme Court held that sex means more than the fact of being a man or a woman and encompasses the full range of gender expression in the workplace. See supra Part II.B. What is more, the language relied on in DeCintio was derived from cases from other circuits, see 807 F.2d at 307 (citing Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982)), whose reasoning has now been soundly rejected. See Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004).
This Court in Simonton also gave great weight to the fact that Congress has refused to amend Title VII to explicitly prohibit discrimination because of sexual
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orientation. As an initial matter, the Supreme Court has repeatedly cautioned that acts of subsequent Congresses “deserve little weight in the interpretive process” regarding federal statutes. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994). Moreover, congressional failure to act could just as easily establish the opposite conclusion from the one the Simonton Court drew: that amendment of the statute was unnecessary because sexual orientation discrimination already is covered by the prohibition against discrimination because of sex. See Br. Amici Curiae of 128 Members of Congress, Christiansen v. Omnicom Grp.., Inc., No. 16-748-cv, 2016 WL 3551468, at *8 (2d Cir. June 28, 2016) (“[I]t is equally plausible that [the Employment NonDiscrimination Act] was introduced to clarify as well as expand Title VII’s protections . . . .” (emphasis added)); cf. Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 n.12 (D. Conn. 2016) (“The fact that the Connecticut legislature added [language explicitly protecting gender identity] does not require the conclusion that gender identity was not already protected by the plain language of the statute [prohibiting sex discrimination], because legislatures may add such language to clarify or settle a dispute about the statute’s scope rather than solely to expand it.”). At a bare minimum, subsequent legislative action (or inaction) has no bearing on what Congress intended (or did not intend) in 1964 when it enacted Title VII. Nor can congressional intent – whatever it may have been – alter the
25

meaning of the words Congress actually used. Nearly two decades ago, Oncale squarely rejected the notion that legislative intent could limit the forms of sex discrimination prohibited by Title VII and made clear that the full scope of Title VII’s protections cannot be determined solely by reference to the kinds of discrimination that were evident to legislators in 1964. 523 U.S. at 79-80. As Justice Scalia observed, the mere fact that a particular strain of bias was “not the principal evil Congress was concerned with when it enacted Title VII” does not end the analysis: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79 (finding same-sex sexual harassment to be actionable sex discrimination under Title VII); see also Newport News, 462 U.S. at 679-81 (rejecting the argument that some of Title VII’s protections apply only to women and not to men, despite the fact that the prohibition against sex discrimination was enacted to combat discrimination against women). Just as there is no exception to Title VII for same-sex sexual harassment, see Oncale, 523 U.S. at 79, there is no exception for lesbian, gay, or bisexual people either.
This Court’s only other precedential case addressing sexual orientation discrimination is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In Dawson, the plaintiff alleged that her employer, a hair salon, did not promote her
26

to stylist because she was a lesbian who did not conform to sex stereotypes about femininity. Id. at 213-16. The Dawson Court noted that the plaintiff asserted a sex stereotyping claim and recognized that “[w]hen utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that ‘[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.’” Id. at 218. Despite recognizing that sexual orientation necessarily implicates sex, this Court nevertheless cited Simonton for the proposition that “a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” Id. (quoting Simonton, 232 F.3d at 38).
The Court’s discussion regarding “bootstrapping” reveals the tension between the categorical rejection of sexual orientation claims, on the one hand, with the expansive definition of sex discrimination adopted in Price Waterhouse, on the other. Dawson purported to limit sex stereotyping claims to those premised on an employee’s “behavior” or “appearance.” 398 F.3d at 221. But that limitation is not found in Price Waterhouse and, in fact, is contradicted by decades of case law – both before and after Price Waterhouse. See, e.g., Manhart, 435 U.S. at 707 n.13 (noting that Title VII prohibits “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”); see generally supra
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Part I. Those decisions make clear that employers may not make adverse decisions based on any aspect of a person’s sex, including the respective roles of men and women as spouses, breadwinners, or caregivers at home. Just as employers may not refuse to hire a woman because she is married, see Sprogis, 444 F.2d at 1197, or because she is a mother, see Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 120 (2d Cir. 2004), or because she is the sole wage-earner in her household, see Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir. 1988), so too they may not refuse to hire a woman because she is married to a person of the same sex. As one judge of this Circuit has recognized, the results of the Dawson decision are “logically untenable.” Christiansen, 852 F.3d at 205-06 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 342, 350 (observing that attempting to parse sexual orientation discrimination and sexual stereotyping claims led to “a ‘confused hodge-podge of cases’” with “bizarre,” “confusing and contradictory results”).
This Court should no longer adhere to pre-Price Waterhouse precedent and reasoning. Instead, this Court should apply the principles mandated by the Supreme Court to determine whether sexual orientation claims are covered by Title VII. Applying those principles leads to the conclusion that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII.
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CONCLUSION This Court should hold that sexual orientation discrimination is sex discrimination prohibited by Title VII.

Dated: June 26, 2017

Respectfully submitted,
s/ Ria Tabacco Mar RIA TABACCO MAR LESLIE COOPER JAMES D. ESSEKS Lesbian Gay Bisexual Transgender
& HIV Project LENORA M. LAPIDUS GILLIAN L. THOMAS Women’s Rights Project American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 rmar@aclu.org lcooper@aclu.org jesseks@aclu.org llapidus@aclu.org gthomas@aclu.org
ERIN BETH HARRIST CHRISTOPHER DUNN New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 eharrist@nyclu.org cdunn@nyclu.org

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FATIMA GOSS GRAVES National Women’s Law Center 11 Dupont Circle, N.W., Suite 800 Washington, DC 20036 (202) 588-5180 fgraves@nwlc.org Attorneys for Amici Curiae
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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Local Rules 32.1 and 29.1(c) because it contains 6,976 words, excluding the parts of the brief exempted by Fed. R. App. P. 32. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman type style.

Dated: June 26, 2017

s/ Ria Tabacco Mar RIA TABACCO MAR American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 rmar@aclu.org
Attorney for Amici Curiae

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CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS I hereby certify that on June 26, 2017, I electronically filed the foregoing Brief of 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 PlaintiffsAppellants Melissa Zarda and William Allen Moore, Jr. with the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Ria Tabacco Mar RIA TABACCO MAR American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 rmar@aclu.org Attorney for Amici Curiae
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APPENDIX: INTERESTS OF AMICI CURIAE The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan organization with over one million members dedicated to defending the principles embodied in the Constitution and our nation’s civil rights laws. The ACLU has long fought to ensure that lesbian, gay, bisexual, and transgender people are treated equally and fairly under law. The New York Civil Liberties Union (“NYCLU”), the New York affiliate of the American Civil Liberties Union, is a nonprofit, nonpartisan organization with approximately 80,000 members founded in 1951 to protect and advance civil rights in New York. The NYCLU has long fought to ensure that lesbian, gay, bisexual, and transgender New Yorkers are treated equally and fairly under New York and federal law. The National Women’s Law Center is a nonprofit legal advocacy organization dedicated to the advancement and protection of women’s legal rights and opportunities since its founding in 1972. The Center focuses on issues of key importance to women and their families, including economic security, employment, education, health, and reproductive rights, with special attention to the needs of low-income women and women of color, and has participated as counsel or amicus curiae in a range of cases before the Supreme Court and the federal Courts of Appeals to secure the equal treatment of women
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under the law, including numerous cases addressing the scope of Title VII’s protection. The Center has long sought to ensure that rights and opportunities are not restricted for women or men on the basis of gender stereotypes and that all individuals enjoy the protection against such discrimination promised by federal law.
9to5, National Association of Working Women is a 44-year-old national membership organization of women in low-wage jobs dedicated to achieving economic justice and ending all forms of discrimination. Our membership includes transgender individuals. 9to5 has a long history of supporting local, state and national measures to combat discrimination. The outcome of this case will directly affect our members’ and constituents’ rights and economic wellbeing, and that of their families.
A Better Balance is a national legal advocacy organization dedicated to promoting fairness in the workplace and helping employees meet the conflicting demands of work and family. Through its legal clinic, A Better Balance provides direct services to low-income workers on a range of issues, including employment discrimination based on pregnancy and/or caregiver status. A Better Balance is also working to combat LGBTQ employment discrimination through its national LGBT Work-Family project. The workers we serve, who are often struggling to care for their families while holding down a job, are
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particularly vulnerable to retaliation that discourages them from complaining about illegal discrimination.
California Women’s Law Center (“CWLC”) is a statewide, nonprofit law and policy center dedicated to advancing the civil rights of women and girls through impact litigation, advocacy and education. CWLC’s issue priorities include gender discrimination, reproductive justice, violence against women, and women’s health. Since its inception in 1989, CWLC has placed an emphasis on eliminating all forms of gender discrimination, including discrimination based on sexual orientation. CWLC remains committed to supporting equal rights for lesbians and gay men, and to eradicating invidious discrimination in all forms, including eliminating laws and policies that reinforce traditional gender roles. CWLC views sexual orientation discrimination in the workplace as a form of illegal gender discrimination that is harmful to our state and country, and needs to be eradicated.
Equal Rights Advocates (“ERA”) is a national non-profit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Since its founding in 1974, ERA has litigated numerous class actions and other high-impact cases on issues of gender discrimination and civil rights. ERA has appeared as amicus curiae in numerous Supreme Court cases involving the interpretation of anti-
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discrimination laws, including Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); and Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).
Founded in 1987, the Feminist Majority Foundation (“FMF”) is a cutting-edge organization devoted to women’s equality, reproductive health, and non-violence. FMF uses research and action to empower women economically, socially, and politically through public policy development, public education programs, grassroots organizing, and leadership development. Through all of its programs, FMF works to end sex discrimination and achieve civil rights for all people, including people of color and LGBTQ individuals.
Gender Justice is a nonprofit advocacy organization based in the Midwest that works to eliminate gender barriers based on sex, sexual orientation, gender identity, or gender expression. Gender Justice targets the root causes of gender discrimination, such as cognitive bias and stereotyping. We believe that courts should take an expansive, and inclusive, interpretation of what constitutes discrimination “because of sex.” Consistent with that view, we represent the transgender plaintiff in Rumble v. Fairview Health Services, No. 0:14-cv-02037-SRN-FLN (D. Minn.), whose right to sue under the Affordable Care Act, Section 1557, was recognized by the court in 2015.
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Legal Voice is a nonprofit public interest organization in the Pacific Northwest that works to advance the legal rights of women and girls through litigation, legislation, and public education on legal rights. Since its founding in 1978, Legal Voice has been at the forefront of efforts to combat sex discrimination in the workplace, in schools, and in public accommodations. We have served as counsel and as amicus curiae in numerous cases involving workplace gender discrimination throughout the Northwest and the country. Legal Voice serves as a regional expert advocating for legislation and for robust interpretation and enforcement of anti-discrimination laws to protect women and LGBTQ people. Legal Voice has a strong interest in ensuring that Title VII is interpreted to cover discrimination based on sexual orientation and sex stereotyping.
The National Organization for Women (NOW) Foundation is a 501(c)(3) entity affiliated with the National Organization for Women, the largest grassroots feminist activist organization in the United States with chapters in every state and the District of Columbia. NOW Foundation is committed to advancing equal opportunity, among other objectives, and works to assure that women and LGBTQIA persons are treated fairly and equally under the law. As an education and litigation organization dedicated to eradicating sex-based discrimination, we believe that the Civil Rights Act of 1964, Title VII provision
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prohibiting sex discrimination extends to sexual orientation. The National Partnership for Women & Families (formerly the
Women’s Legal Defense Fund) is a national advocacy organization that develops and promotes policies to help achieve fairness in the workplace, reproductive health and rights, quality health care for all, and policies that help women and men meet the dual demands of their jobs and families. Since its founding in 1971, the National Partnership has worked to advance women’s equal employment opportunities and health through several means, including by challenging discriminatory employment practices in the courts. The National Partnership has fought for decades to combat sex discrimination, including on the basis of sex stereotypes, and to ensure that all people are afforded protections against discrimination under federal law.
The Southwest Women’s Law Center is a legal, policy and advocacy law center that utilizes law, research and creative collaborations to create opportunities for women and girls in New Mexico to fulfill their personal and economic potential. Our mission is: (1) to eliminate gender bias; and (2) to utilize the provisions of Title IX to protect women against violence in schools and on college campuses and to protect the rights of LGTB individuals. We collaborate with community members, organizations, attorneys and public officials to ensure that the interests of all individuals are protected.
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Women Employed’s mission is to improve the economic status of women and remove barriers to economic equity. Since 1973, the organization has assisted thousands of working women with problems of discrimination and harassment, monitored the performance of equal opportunity enforcement agencies, and developed specific, detailed proposals for improving enforcement efforts, particularly on the systemic level. Women Employed believes that barring discrimination “because of sex” encompasses discrimination against an employee because of his/her sexual orientation because women’s rights and LGBT rights are inextricable.
The Women’s Law Center of Maryland, Inc. is a non-profit, membership organization established in 1971 with a mission of improving and protecting the legal rights of women, particularly regarding gender discrimination, employment law, family law and reproductive rights. Through its direct services and advocacy, the Women’s Law Center seeks to protect women’s legal rights and ensure equal access to resources and remedies under the law. The Women’s Law Center is participating as an amicus in Zarda v. Altitude Express, Inc. because it agrees with the proposition that sex, gender, and sexual orientation are intrinsically intertwined, particularly in the realm of discrimination. The concerns and struggles of the LGBTQ community impact all women, regardless of sexual orientation.
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The Women’s Law Project (“WLP”) is a non-profit women’s legal advocacy organization with offices in Philadelphia and Pittsburgh, Pennsylvania. Founded in 1974, WLP’s mission is to create a more just and equitable society by advancing the rights and status of all women throughout their lives. To this end, we engage in high impact litigation, policy advocacy, and public education. For over forty years, WLP has challenged discrimination rooted in gender stereotyping and based on sex.
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 15-3775

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS COINDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA,
Plaintiffs-Appellants,
— against —
ALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

APPELLANT’S BRIEF (replacement)

GREGORY ANTOLLINO Attorney for Plaintiff-Appellant 725 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397

BERGSTEIN & ULLRICH, LLP, Stephen Bergstein, Of Counsel Attorney for Plaintiff-Appellant 12 Railroad Avenue Chester, New York 10918 (845) 469-1277
March, 2015

TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii ISSUES ........................................................................................................................................... 1 JURISDICTION ............................................................................................................................. 2 PROCEDURAL CHRONICLE ...................................................................................................... 2 FACTS ............................................................................................................................................ 5
1. Being Gay - An Escapade? ................................................................................................. 5 2. Events at the Dropzone: Frame by Frame........................................................................... 9 3. Pretext and Disparate Treatment at Summary Judgment.................................................. 16 4. The Defense ...................................................................................................................... 21
a. 50 Unidentified Witnesses in the Pretrial Order. .......................................................... 21 b. Appeals to Gay Prejudice............................................................................................... 24
SUMMARY OF ARGUMENT .................................................................................................... 32 STANDARD OF REVIEW .......................................................................................................... 37 ARGUMENT ................................................................................................................................ 38
I. Sexual-Orientation Discrimination Is Sex Discrimination. .............................................. 38 A. Baldwin Undoes Simonton, and Constitutional Developments Require a Rethinking of Title VI.................................................................................................................................. 38 B. Jury Instructions Render the Error Harmful. ................................................................ 41 C. Baldwin Renders Simonton Stale. New Constitutional Law also Requires Reconsideration of Judge-Made Omissions of Gay People from Title VII.......................... 44
i

II. Prejudice Rendered the Trial Unfair. ................................................................................ 49 A. The 2001 Termination................................................................................................... 49 B. Worker’s Compensation................................................................................................ 52 C. Trial by Ambush............................................................................................................ 53 D. Appeals to Prejudice ..................................................................................................... 59
CONCLUSION............................................................................................................................. 65 CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) ............................................................. 66
ii

TABLE OF AUTHORITIES
CASES
Abrams v. Dep’t of Pub. Safety, 764 F.3d 244 (2d Cir. 2014). .............................. 43 Auer v. Robbins, 519 U.S. 452 (1997). .................................................................. 40 Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (July 15, 2015)............................. 33 Bethesda Lutheran Homes & Servs. v. Born, 238 F.3d 853 (7th Cir. 2001) .......... 45 Burrows v. The College of Central Florida, (11th Cir.15-14554) .......................... 40 Cassotto v. Donohoe, 600 Fed.Appx. 4 (2d Cir. 2015) .......................................... 44 Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002) .................................. 39 Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984 . 5, 38, 39 Christiansen v. Omnicom Grp., Inc., 2016 U.S. Dist. LEXIS 29972 (S.D.N.Y. Mar.
9, 2016)................................................................................................................ 46 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) . 48 Cline v. Avery Abrasives, Inc., 96 Misc.2d 258 (Sup. Ct. 1978) ........................... 52 DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir.1979) ......................... 40 Diebold Found., Inc. v. C.I.R., 736 F.3d 172 (2d Cir. 2013).................................. 45 Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015) ............................ 33 Gordon v. New York City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) .................. 37 Hall v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 132878 (W.D.Wash. Sep. 22, 2014)
............................................................................................................................. 38
iii

Harris v. O’Hare, 770 F.3d 224 (2d Cir. 2014)....................................................... 37 Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002)
............................................................................................................................. 38 Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008).................... 34, 38, 47, 48 In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015)....... 44 Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. LEXIS 146663 (M.D.Ala. Oct. 29,
2015).................................................................................................................... 39 Koufakis v. Carvel, 425 F.2d 892, 905 (2d Cir. 1970) ........................................... 59 Lavigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504 (N.D.N.Y. 2010)
............................................................................................................................. 55 Lopez v. City of N.Y., 2012 U.S. Dist. LEXIS 83611 (E.D.N.Y. June 15, 2012). 55 Macy v. Holder, 2012 EEOPUB LEXIS 1181 (E.E.O.C. Apr. 20, 2012) ........ 33, 41 Monette v. Cnty. of Nassau, 2015 U.S. Dist. LEXIS 42523 (E.D.N.Y. Mar. 31,
2015).................................................................................................................... 42 McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). ................. 32, 36, 43, 52 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)................................... 47 Minneapolis, S. P. & S. S. M. R. Co. v. Moquin, 283 U.S. 520 (1931) ................. 59 Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) ...................... 40 Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999). ....................... 57 Oncale v. Sundowner Offshore Servs, 523 U.S. 75 (1998). ....................... 33, 40, 47
iv

Pappas v. Middle Earth Condominium Ass’n, 283 F.3d 534 (2d Cir.1992)..... 37, 59 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), vacated on other
grounds, 133 S.Ct. 2652 (2013)........................................................................... 63 Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009)................................................ 3 Sec. Plans, Inc. v. CUNA Mut. Ins. Soc’y, 769 F.3d 807 (2d Cir. 2014)............... 37 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .................................................... 1 Sims v. Blot 354 F.App'x 504, 506 (2d Cir. 2009 .................................................. 58 Skidmore v. Swift & Co., 323 U.S. 134 (1944)............................................ 5, 39, 40 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014). ......... 63 Terveer v. Billington, 34 F.Supp.3d 100 (D.D.C. 2014) ........................................ 39 Thompson v. N. Am. Stainless, 562 U.S. 170 (2011)............................................. 47 Tyson v. Trigg, 50 F.3d.436 (7th Cir.1995)............................................................ 64 U.S. v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014).......... 37 Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984) ............................... 40 Union of Needletrades v. INS, 336 F.3d 200 (2d Cir. 2003) .................................. 45 United States v. Baum, 482 F.2d 1325 (2d Cir.1973)............................................. 56 United States v. Kelly, 420 F.2d 26 (2d Cir.1969) ................................................. 56 University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517
(2013) .................................................................................................................. 44
v

Videckis v. Pepperdine Univ., 2015 U.S. Dist. LEXIS 167672 (C.D. Cal. Dec. 15, 2015).................................................................................................................... 39
Wade v. Franzen, 678 F.2d 56, 58 (7th Cir.1982) .................................................. 51 Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.1982) .............................. 40 Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007) ....................................... 44
STATUTES & RULES 28 U.S.C. § 1291....................................................................................................... 2 28 U.S.C. § 1331....................................................................................................... 2 28 U.S.C. § 1332....................................................................................................... 2 42 U.S.C. § 2000e-2(m). ......................................................................................... 42 F.R.E. 401(a)........................................................................................................... 58 Fed. R. Civ. Pro. 26 ......................................................................................... passim Fed. R. Civ. Pro. 16(f)............................................................................................. 53 Fed. R. Civ. Pro. 37(e) ............................................................................................ 53 Title VII of the Civil Rights Act, 42 U.S.C. § 2000 ........................................ passim New York Executive Law § 296 (NYSHRL) .................................................. passim New York Worker's Compensation Law § 120 ...................................................... 52 New York Worker's Compensation Law § 125 ...................................................... 52
vi

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
x---------------------------------------------------x MELISSA ZARDA & WILLIAM MOORE,
EXECUTORS, ESTATE OF DONALD ZARDA,
Plaintiff-Appellant,
-against-
ALTITUDE EXPRESS & RAYMOND MAYNARD,
Defendants-Appellees x---------------------------------------------------x
ISSUES

1.

The EEOC calls together the language of Title VII, fixing sexual-

orientation discrimination as sex discrimination.Not so, says Simonton v. Runyon,

232 F.3d 33 (2d Cir. 2000). But deference given the EEOC; protections allowed

gay people by the Supreme Court; and this Court’s Title VII jurisprudence

leave us with interpretations of gay-rights law that are inconsistent and elude

Constitutional analysis. At long last, are Simonton and its progeny simply

obsolete?

2. Did the court allow the defense to try the case by ambush and to appeal to

potential juror prejudice?

3. “Gay Don” Zarda worked for defendants in 2001 but got canned,

professedly, for revealing to customers son homosexualité. This reason was then

legal under New York law. Maynard needed good skydivers, though, and rehired

plaintiff in 2009. New York had changed by then, disallowing gay discrimination. But Maynard again sacked Zarda, again for “de-closeting,” even though laws protected him. Was evidence of the 2001 termination not irrelevant and prejudicial, given interim remedial legislation?
JURISDICTION Subject-matter jurisdiction falls under Title VII of the Civil Rights Act (“CRA”). 28 U.S.C. § 1331. Plaintiff also met the requirements of diversity jurisdiction. 28 U.S.C. § 1332. His estate timely appeals from the October 28, 2015 judgment of the district court. Appellate jurisdiction is proper under 28 U.S.C. § 1291.
PROCEDURAL CHRONICLE In 2010, Zarda filed, alleging sex discrimination under Title VII and sexualorientation discrimination under the New York State Human Rights Law (NYSHRL codified at Executive Law § 296). Altitude Express does business as Skydive Long Island, where the lawsuit was filed (Bianco, J., presiding in the Eastern District of New York). Plaintiff’s Title VII claim alleged he was gender non-conforming in his dress; often mistaken as straight, he corrected that assumption. But then he was accused of improperly touching his female skydive passenger whom he was required to touch; he was not so much instructor as
2

protector. He alleged that, as male – even if gay – Maynard lied about the articulation of touching a woman as a reason for termination; there was no investigation. His claim under the NYSHRL was classic sexual-orientation discrimination, in that he was also terminated for telling the same woman he was gay.
Zarda was an experienced skydiver, and unguarded about his sexuality. Studying aviation, he worked as a skydiving instructor (“tandem master”) at “dropzones” like Skydive Long Island, know also as “SDLI.” A dropzone is an airstrip for mini-planes; thrill-seekers fly to 13,000 feet, attached to instructors like Zarda. In June 2010, he jumped with Rosana Orellana and landed safely. The two were attached in a harness, and, as required, she signed a consent to “close” contact. A videographer recorded the adventure, which, on tape, seemingly ended well. But later David Kengle, Orellana’s boyfriend, complained about Don’s being open about being gay to Orellana; he said she was also uncomfortable at her hips. Don was fired.
Both sides moved for summary judgment. On March 28, 2014, the district court granted defendants’ motion under Title VII, rejecting plaintiff’s evidence of insufficient masculinity or his analogy to Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009), which suggests taking adverse action after failing to investigate a “sexual-harassment” type of complaint is sex stereotyping. (SPA23-27). The judge
3

denied the defense motion, as well as plaintiff’s, under the NYSHRL, as “the disclosure of sexual orientation to Orellana was. . . in very close proximity to the termination. (SPA27-28). Additionally, another employee, Richard Winstock, “disclosed his heterosexual[ity] during” jumps and suffered no adverse action. (SPA28). “[T]he reason for the termination” later changed, making the evidence sufficient to question whether it “was because of the articulated nondiscriminatory reason. . . of a customer complaint about discomfort and being touched by the plaintiff during the [parachute] jump or” his “sexual orientation, or the disclosure” thereof. (SPA 28-29).
After discovery, the parties attempted to join a Pre-trial Order (“JPTO”), but plaintiff objected to defendants’ list of 50 new witnesses. He moved for relief. The court nixed his request for a shorter list, but required defendants to provide modest additional information. (SPA9-11).
Sadly, Zarda was killed in a jumping accident before trial; the estate took over. (JA705). Both parties then designated portions of his deposition for trial and raised cross in-limine motions on which the Court did not rule until trial when 3 of the fifty were offered. Plaintiff moved again for for outright preclusion given late disclosure. Again, the court denied relief. (JA689-704).
Just before trial, plaintiff also moved to revive his Title VII based on the Baldwin v. Foxx decision, wherein the EEOC explains how Title VII covers sexual
4

orientation by its plain language. (JA702-222). The lower court held that Simonton tied his hands, and denied deferring to the agency, id., under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as we argued, nor Skidmore v. Swift & Co., 323 U.S. 134 (1944), as we argue, additionally, below.
Evidence closed, and the court instructed the jury under the “determinative factor” – “but for” – standard of causation. With this, our objection overruled, jurors returned a defense verdict. Judgment entered October 28, 2015; this timely appeal followed.
FACTS 1.   Being Gay – An Escapade? The Court construes evidence for the non-movant on summary judgment. Here, only the defense won this relief under Title VII. Since plaintiff’s prime contention is that ruling, the pre-trial facts are construed favoring him. The potential for prejudice in evidentiary rulings and attorney misconduct is discussed in context. We – plaintiff’s legal team – use Don’s name and pronouns in referring to our deceased client. We claim Defendants ended his employment because of sex, a factor inextricably intertwined with sexual orientation. He lost his job, at least partly, because he told Orellana that he was gay. She relayed this information to Kengle, who was outraged; she also said she felt uncomfortably touched by a gay
5

guy outing himself during her skydive. Plaintiff acknowledged to Maynard outing himself to allay Orellana’s anxiety; someone joked that he was “moving in” on her. The close contact tandem skydiving requires – two strangers strapped together, chest-to-back – often invites such teenage-minded associations. Plaintiff denied unexceptional contact with Orellana because as experienced in the field and close connection is required for passenger well-being. See JA650, 681-82.
Orellana, 19, didn’t complain nor want to. (JA454, 481). Kengle brooded, then called Maynard, who did not investigate, except to confront Zarda. Maynard attested that if “convinced” a complaint is true, he “would look into it.” (JA317). Since Maynard did no investigation other than talk to Zarda, logically, he was only convinced that Don revealed he was gay. (JA113-14). Infuriated, Maynard took the money he’d refunded the passengers from Zarda’s paycheck, then suspended him. Thereafter, Maynard didn’t question Orellana nor anyone on the plane; he merely thought about it and fired Zarda a week later. (JA113-14, 350, 457, 481-82; 1343). He did, however, return the converted money.
The Orellana-Kengle videotapes both show rousing amusement. (EA1-2).1 Maynard quibbled about this, but admitted he saw nothing “improper, inappropriate or unsafe” that had occurred between Zarda and Orellana. (JA.36667). At trial, he backtracked and noted that Don’s facial gestures could make
1 Electronic appendix on disks, Volume I of II.
6

Orellana uncomfortable. (JA1433). This Court should make its own assessments: but plaintiff’s position is that the jump was a fully entertaining, safe experience. Orellana and her partner each exclaimed “Awesome!” at landing. EA1[2:52]. Zarda – who had jumped thousands of times – acted like a good Disneyworld character: as if he could not share enough in the excitement.
At trial, the defense repeatedly invoked “creepy” gestures plaintiff made, as characterized by Maynard (JA1433), during the flight. (JA371-72, 688, 798-792, 847, 1416, 1507, 1551; EA.1 [0:55-1:08]). Maynard admitted he did not terminate Zarda because of these gesticulations, (JA371, 1457), but simply because he received a complaint qua complaint. JA371. The preoccupation with “creepy” is that Zarda put his finger on his teeth, then twirled it around, making devious expressions with his eyes. In fact, while of minor importance, the defense made this a major part of its theme, and we believe it influenced the jury. Tooth touching was Don’s tic – like beard stroking – but the defense used it as a gateway to characterizing him as disgusting. In fact, William Moore was precluded, in attesting (with photo), that this is just what Zarda did. (JA1539-40, see also JA.812 (photo)). The judge said the facial tic had no bearing on Maynard’s state of mind. JA.1540. This was true, but he let “creepy” come up over and over; we believed the inflammatory invocation invited response.
7

Skydivers are not performers per se, but should “enhance the video” – act silly, and “play[] for the camera.” (JA1097, 1610). The customers pay extra for video. The goal is fun, so instructors use body language, perhaps mischievously, rather than bide time with deadpan visage.
When terminated, plaintiff secretly recorded Maynard. (EA5, Vol. I). The conversation was also transcribed at deposition (JA.586-90), and in it, Maynard barely mentions Orellana’s hip, but insists Zarda’s disclosure of his sexual orientation is an exposé of impermissible “personal issues,” that he likens to “escapades.” (JA.587). These words prove intent, demonstrating unadulterated prejudice; being gay is no more an escapade than being Italian. The idea of “escapades” reveals, if not homophobia, a severe misunderstanding of what it means to be gay.
Months after his termination, defendants attempted to disqualify Zarda from unemployment benefits, alleging “misconduct” for the disclosure of “personal information.” But they mentioned nothing of Orellana’s physical discomfort. (JA.737). Defendants noted other unspecified complaints against Zarda. Id. We learned that these alleged were similarly homo-ignorant: In 2001, two women “in tears” allegedly complained that plaintiff revealed his sexual orientation. That’s it. (JA.335).
8

Plaintiff had a different understanding about 2001. (JA122). He understood Maynard fired him for refusing to perform an unsafe diving maneuver. (JA122). Ultimately, Maynard documented nothing. (JA336).
2.   Events at the Dropzone: Frame by Frame. Zarda was an experienced, talented skydiver. (JA1405 (Maynard), JA96465 (Callanan) JA1254 (Winstock)). Most co-workers very much liked him; customers praised him. (JA1378 (Maynard), 592 (customer), 978 (Callanan), 1087 (Winstock)). Zarda testified that during the Orellana skydive, he tried to dispel discomfort by telling Rosana he was gay to ease the teenager’s fear of proximity to a man. (JA148-49, 1043, 1266). Zarda’s supervisor Winstock rated his jump with Orellana 97% (JA411); Maynard gave him 8 or 9 out of 10. (JA370). Zarda outted in similar situations. As was common, someone joked at Kengle about close contact between Orellana and Don. (JA453). Such banter was feigned fun: “jokes” suggesting sexual innuendo are “golden oldie[s]” at dropzones nationwide. (JA1051, 1201-02). Zarda, objectively, was a happy, ebullient, goodlooking, athletic fellow; if female customers were interested or someone suggested he was hot for a gal, Zarda came out as gay to “calm a situation” and take him “out of the hot seat. It’s made me feel more comfortable to be able to say. . . ‘don’t worry. . . I’m gay, I have an ex-husband for proof[,]. . . so if [the boyfriend] hears. . . he can know, [‘]he’s not going to hit on my girlfriend.[’]” (JA1053-54). But the
9

“golden oldie” did not please Kengle. (JA1206-07). Orellana was uncomfortable for different reasons, including that she is claustrophobic (JA1235) – not an ideal condition when closed in a mini-plane, ready to jump into the sky. Nevertheless, when her jump ended, she appears relaxed (JA1340-01), and poses with Don. (JA786). The stills from the plane even show her flirting with the camera. (JA1340).
Maynard’s statement about “escapades” was obviously culturally misinformed, therefore after losing summary judgment, his team tried a new strategy. They honed in on Don’s “creepy” expression, to which we objected in limine, along with his “perversions” and completely false dislike of women. (JA197, 569). The final moment of Orellana’s jump depicts her comfortably posing with Zarda and Kengle, side by side, moments after Zarda’s outing himself, and Orellana’s alleged discomfort. No one complained then. When Kengle learned Zarda said he was gay, however, the incident got Don the ax. But he did nothing to merit termination in that jump: he followed the book, literally, which says: “If you think you [do] your student a favor by [varying] normal . . . procedures you could be making a fatal error[.]” (JA583-85) (parachute industry warning).
“Gay Don” allegedly mishandled Orellana’s hip: We don’t discount her complaint, but perhaps she should not go skydiving again, nor bungee jumping, on her “extreme” list. (JA.471). What is most important, she should not search for
10

adventure where a man can handle her. Indeed, to be privileged to pay to fall from a plane, passengers agree to “close physical” contact to the skydiver. (JA604). Winstock characterized this contact as “invasion,” or of “the [passenger’s] space.” The release that Orellana didn’t read that “let[s passengers] know we’re” doing that for safety. (JA413-14. 1217, 1254).
Winstock, SDLI’s chief instructor, had done over 7,500 jumps. (JA395). He now owns a different dropzone. (JA1240). He noted the obvious: “if [I’m] putting a harness around your. . . thigh and I need to tighten the strap, I might need to touch your thigh[.]”(JA395-96). Maynard admitted that a tandem master might even have to touch a passenger’s ass. (JA351, 206 (picture)). Certain maneuvers require a bear hug, and Maynard wouldn’t fire someone if there were a later complaint about hugging in this particular maneuver. (JA370, 208). For Zarda, however, a complaint about the hip – where there is attachment – was used to justify termination; but, we contend, this was plainly pretextual, especially given that Don was gay.
Orellana testified she was uncomfortable for many reasons, including that she was about to jump from a plane, and is claustrophobic. (JA487). Objectively, these seem good reasons to be scared. Maynard admitted skydiving is not for everyone, but “being crazy helps.” (JA308). During pre-jump training, however, he shows a video of a parachuting expert warning of the risk one takes in “being
11

crazy”: “There is not. . . a perfect parachute. . . airplane. . . pilot. . . parachute instructor or, for that matter. . . student. Each. . . is subject to malfunction or human error.” (JA391). Maynard agrees. Id. He, therefore, requires every passenger to sign a waiver before performing a jump that can kill. Several have died at SDLI; with a risky fall comes euphoria, a check off the bucket list, but also potential tragedy. (JA306). Orellana didn’t realize that making it out alive was alone an accomplishment; instead she added at trial that Zarda was vocally “sensual.” (JA1232). In fact, the photos show Zarda’s mouth near to Orellana’s ear to give instructions, per practice. (JA795). Winstock explained that the instructor’s mouth and passenger’s ear are close for “safe communication”; “some instructors prefer. . . the left side, some . . . the right.” But if the passenger’s head in front, “when the parachute opens, [it] can. . . knock you out or crack your teeth.” (JA405). Zarda preferred the right. (JA975). At age 19, Orellana’s opinion of Zarda’s technique was not to her liking, but bear-hugging and ass-touching complaints would not result in a termination, so why would a “sensual” whisper? We contend “sensual whispering” was not an issue for Maynard - only that Don said he was gay, and he said he was gay because he was gay.
Kengle and Orellana expressed at landing, anyway, that the experience had been “awesome.” (JA1240). As they left the dropzone, however, one comment led to another, and suddenly, Zarda’s telling Orellana he was queer blemished the
12

experience enough to complain. She wanted to let it go, but Kengle seethed; he’d paid $600 for the jump, was pleased initially, but in days, complained that Zarda had “ruined” Orellana’s birthday. (JA1344-45). Maynard refunded his money. Kengle was not merely upset Orellana learned plaintiff was gay, but that Gay Don, as he was known, had also allegedly flirted with her. (JA1348-49). He described how men continually hit on “very beautiful” Orellana. (JA454). He was inured to this, id., or maybe not. Even a gay guy’s attention of his girl hurts his bravado; he has no gay friends, and noted that he doesn’t like how gay men act with women – that they think they have license to “flirt.” (JA458-59). His common idea of giggling, nelly queens tapped into Maynard's thoughts of dirty “escapades,” and the doubled prejudice combined to end Zarda’s career. However, unemployed Kengle (JA450, 780) did get refunded. (JA455).
Maynard confronted Zarda, who asked to see the video. (JA1023-24). Request denied. As indicated, Maynard denied anything on the video suggested impropriety, but at trial, the defense invoked twelve chants of “creepy” and numerous other slurs.
Zarda’s orientation was a playful subject of humor at work. (JA1020-21). See, JA607 (“don . . . [i]s a pussy. . .GAYYYYYY. . . u got it gay boy. . . do it pusssssssy. . . thats pretty gay guys!!!” stop being a vagina and take the cast off now”) (JA629-33). That’s how “Gay Don” fit in. Indeed, that’s how some
13

minorities assimilate – by making fun of their difference when the alternative is ostracism. Maynard went along with this until Kengle complained. Zarda retorted, “if you don’t want [my orientation discussed at work], you should the staff” to stop making homo-jokes. (JA103-04). Maynard, knowing plaintiff was gay, and knowing his sexuality was comic fodder, therefore never told Zarda to cover his sexuality, id., even assuming such an instruction were legal. Coming out to one customer with a homo-ignorant boyfriend, however, got him fired.
Kengle alleged Zarda touched Orellana’s hip making “her feel uncomfortable.” (JA346). But see JA302 (Maynard: if someone complains about being touched at a point of attachment, it’s not [a] legitimate” skydiving complaint.) Zarda and Maynard, with thousands of jumps’ experience – Zarda slightly more JA363 – knew handling hips was part of the job. (JA1070 (Zarda), 1025 (Winstock), 1447 (Maynard)).
In response to this allegation, Zarda asked, “Ray, does that [complaint] make any sense to you? I mean, really?” Maynard responded. “It doesn’t matter!” Articulating his words, he added, “This is not working anymore for me for you to be working here.” (JA589). Maynard didn’t say what he meant by “working for him”: Don was a good worker by Maynard’s admission. Maynard didn’t bother to make inquiry of anyone on the plane, not even Orellana. (JA350). Even she wanted Zarda “to. . . protect” her as needed. JA484. Maynard said he just wanted
14

Don out because it “wasn’t working” – so why interview Orellana? (JA589). She complained, so he refunded her money and got rid of Don: “It wasn’t working.” Don asked Ray, what is “it.” Maynard never responded. Don was excellent. One young couple with no expectations had a complaint, but look at the video – you see they had a good time. What bothered Maynard was the revelation of Don’s sexuality – which Maynard disguised as “personal information” – and relegated to an illicit “escapade.” That might be ignorance, but it’s still discrimination.
Winstock urged Maynard to forget it, (JA1075), but in a week, Zarda was canned. Fortunately, he secreted his IPhone, (JA586-590), and produced a recording from which a reasonable, non-prejudiced, properly-instructed jury could find that the words “just not working” (without explanation), “personal information” (that applied to no one else) and equating being gay with engaging in “escapades” were all evidence of discrimination. Nothing is said about “hips” until plaintiff notes the subject, and Maynard – listen carefully to the tone – says, “yeah, that too.” Id.2
Plaintiff left the dropzone dolefully; he filed for unemployment. Defendants opposed the application because of “believed misconduct.” (JA737). Although inappropriate touching would seem to be certain misconduct, touching wasn’t mentioned. Id. But the opposition letter did mention the alleged 2001 complaints:
2 Maynard alleged the whispering took place “under canopy” when the video could not record.
15

“This was not the first time that we had received complaints from paying customers regarding Mr. Zarda.” Id. Zarda was under the impression that Maynard fired him in 2001 because he’d refused to make dangerous jumps. (JA1033). The alleged other complaints were old, undocumented and had to do with Zarda’s coming out to two women, (JA1421, 1425-26, 1429), “on the verge of tears” after jumping “with Don [who recounted his] after-hours activities.” (JA335). Again, Maynard didn’t understand that being gay is an all-day affair. Id. But 2001 was before sexual-orientation laws came into effect in New York, and the 2001 termination was admitted over objection. (JA1135, 1647). Maynard, now subject to new lawmaking, re-hired Zarda in 2009 “because he was a good instructor. . . a good guy.” (JA1487). He again never told plaintiff not to “say gay.” (JA335, 1399). Nevertheless, without dispute, his identification as gay – or his “escapade” motivated his second termination.
3.   Pretext and Disparate Treatment at Summary Judgment Plaintiff mentioned his sexuality to allay customer anxiety. Likely, other men envied his good looks and Michaelangesque body. He preferred men, however; he wanted no part of any straight boyfriends’ jealousy. (The defense attempted at trial to make it seem that his dating women in his teens meant he was hot for Orellana: How absurd; straight men don’t usually develop physiques like that Don’s if they want to attract women – but gay men do - to attract men.) Pre-
16

trial, the defense contended being gay was “personal,” inappropriate for consumers, and suggested any complaints resulted in termination. (JA371). Both excuses were lies. Winstock mentioned his heterosexuality on jumps – but that was fine. (JA355). Also, other complaints did not result in banishment. (JA610, 617, 635).
Plaintiff maintained on summary judgment that Maynard’s reasons were pretextual – no reasonable, non-prejudiced jury could find for the defense (we conceded the Title VII question, given the law at the time, required a trial). Plaintiff, a gay man, had to protect passengers and touch hips, male or female; defendant had other complaints that didn’t lead to termination. As Maynard said “You can’t have everybody happy and you can’t have everybody return.” (JA332). Orellana agreed that Zarda “[n]ever cross[ed] the line.” (JA489). Though the defense made her complaint sound like a desecration, she swore the experience had been “awesome.” (JA485, 566, 574, 1240). Her complaint was Kengle’s complaint and about not having her cake and eating it too. Maynard admitted, if you don’t want to be touched, “then maybe you should not skydive.” (JA305). Nevertheless, discomfort is absent from the videos or pictures in this case notwithstanding that some who choose to skydive find it physically revolting. (JA368, reference to vomiting). Indeed, Maynard discredited, disavowed and raged against “outright lie[s]” in a nearly identical complaint. (JA618-19).
17

Before trial, Maynard barely mentioned Orellana’s hips; the evidence suggests he disbelieves the claim. (JA365). “Ray’s been doing tandems for three decades. [He knows] my reputation. . . . [and what’s] involved in strapping passenger[s]. . . at the hips.” (JA157) (Zarda). Maynard admitted hips were a point of attachment. (JA307). To complain that an experienced, gay skydiver gave a woman hip “discomfort” in an “improper” manner, when hips are points of attachment – that is like playing with a tiger then complaining of a scratch.
Zarda and Winstock mentioned their sexual partners to ease customers’ anxiety. Maynard wanted customers at ease, and saw nothing wrong with Winstock’s strategy. But Don got suspended for the same strategy from a gay person. Maynard acknowledged that people who dislike being touched should think twice about subjecting themselves to close environs: Orellana, after all, was claustrophobic. But her expressions in all videos run from occasionally neutral to mostly happy, at times rapturous. (JA781-802). After landing, she spoke, breathing heavily, “uh, that was awesome.” (JA485, 566). Then, she and Kengle happily posed for a photo with Zarda, their bodies converging, Orellana moving closer to Zarda, not the other way around. (JA1372-73, EA1 2:52).
Winstock, plaintiff’s superior, agreed Zarda was a good instructor and “never observed [Zarda’s interacting] other than [like] normal employee” interaction. (JA1086-87). He denied “inappropriate behavior” with customers or
18

co-workers (JA1069). Having watched the Orellana video, he opined Zarda did as instructed: “enhancing” the background as a stooge for the camera. Id. “[T]andem instructors make many different signals with their hands for the video, like rolling fingers around [their] head.” They also “joke with customers to alleviate” fear, (JA1072-73) perhaps imperfectly. Winstock thought Zarda’s performance during the jump “outstanding.” (JA411).
The waiver warns clients about to take part in dangerous activity that they will wear “a harness which will. . . be adjusted.. . . I understand” the instructor “will. . . put my body in close proximity to [his]. I specifically agree to this physical contact” (JA778): Not “agree,” but “specifically agree.” Zabell joked about the release on summation (JA1735); but earlier, he tried to get the case dismissed because of plaintiff’s jump waiver. (JA1561). That’s disparate treatment: had Orellana sued Maynard, he would have complete immunity, (JA601-05); but Maynard wouldn’t enforce the waiver to protect Zarda. In other words, a death immunizes Maynard, but Zarda’s coming out gets him fired with the additional slander coming from an inflammatory, uninvestigated accusation. The only confirmation Maynard made about Kengle’s complaint was Zarda’s coming out. Thus, the identification as gay was the reason for termination; the hip complaint was not only specious but uninvestigated. Although Maynard argued he fired Zarda for a complaint per se, other identical complaints showed this a lie. (JA617).
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The defense lost its summary judgment motion (on the state claim), so instead of presenting the evidence as presented to the Court, it shifted gears at trial, emphasized “creepy” gestures and blatant homonegativity, combined with the odd attempt to make Zarda seem hetero-curious. Plaintiff’s in-limine motion sought to preclude these discussions (JA197-200) as to relevance and prejudice. Most important, when a gay man’s job is to “invad[e] a person’s space,” we contended it was incredulous he would go in for a grab or whisper sensually – at least not intentionally, despite Orellana’s teenaged interpretations, with her boyfriend yards away. The odious defense that Zarda was a gay, women-hating pervert – new after summary judgment – proceeded and we didn’t expect the judge to allow it. Also, the worker’s compensation evidence – making plaintiff part of a different protected class – was allowed over objection, (JA199), even though defendant denied it factored in termination. (The Court, after denying preclusion of Worker’s Compensation, made it seem like he was being generous: “I’ll allow the question. But there is no claim. . . for. . . unlawful termination because of . . . Workers’ Compensation[.]” (JA1473.)) We didn’t want the issue to come in at all. The words sound favorable to plaintiff, but they mislead.	  
Maynard testified as if skydiving were an assembly line: “do[] your job[s,] talking about [. . . skydiving,] nothing else.” (JA1458). Au contraire! Maynard knew Zarda’s orientation was fodder for chatter (JA357), and that jokes about
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male-female interactions were common. (JA309). He acknowledged Winstock told women he has wife and children. (JA1721). Maynard saw nothing wrong with this (JA1505-06), and admitted sharing family information to customers. (JA1450-53). Another skydiver told a passenger he was from New Zealand – milquetoast information indeed, but personal. (JA1509). Maynard testified that, “[i]f a customer complains, it wouldn’t matter what they complained about.” (JA1462). Logically then, a complaint that an employee comes from New Zealand will get one fired at SDLI. Identification of national origin is prohibited by the CRA, however, and the Court properly instructed that customer preference cannot justify discrimination, (JA1657-58), making Maynard in the wrong.
Maynard admitted he has thousands “coming through” SDLI and “can’t have every customer. . . happy[.]” (JA1356). Indeed, before plaintiff’s incident, a customer complained another “instructor was feeling up [his] girlfriend . . . .The girls explained once the parachute opened they were touching their brea[s]ts and . . . could not protect themselves.” (JA760). Maynard did not investigate this complaint: He merely rejected it as slander: “[I]f someone was feeling up my girlfriend, I would. . . defend her dignity[.]” (JA619). Then why didn’t Kengle? If “Gay Don” were feeling up Orellana, why did Kengle do nothing except look happy and relaxed? (JA.784, 786, 796).
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4. The Defense a.   50 Unidentified Witnesses in the Pretrial Order.
Defendants listed 50 new witnesses in the JPTO. (JA694-97). Plaintiff had deposed all but one witness listed in initial disclosures; he could not depose another fifty, and moved for relief. Defendant opposed because the fifty were allegedly co-workers. Some were, but parties disclose relevant witnesses in discovery, not the JPTO; there is no exception for co-workers. The Court, to our dismay, denied the motion. He afforded plaintiff modest relief, holding
a list of names doesn’t [allow] the other side. . . to. . . prepare. So for people who were not deposed, you need to put. . . in. . . a couple of sentences that summarize[] their testimony. . . so that [plaintiff can]. . . object and prepare[.]. . . If [defense counsel] wants to call them, he [has] to demonstrate that [the testimony is] relevant, noncumulative [and presented] no prejudice. (SPA9).
These words did nothing to allay prejudice (and were unenforced), because plaintiff needed to know who the few witnesses would be and to depose them. Defense counsel Saul Zabell never provided these “couple of sentences.” It was not until plaintiff rested that he named three of the fifty new witnesses to testify. (JA1319-20). Plaintiff then moved to preclude; the late disclosure violated Rule 26(a)(1), the substance of the witnesses’ testimony, not identified as ordered, not in the JPTO, nor initial disclosures, nor the modest “sentences” as ordered by the Court. (JA734-35).
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The Court denied the motion: plaintiff should have made yet another pretrial motion, he held. (JA1625, 1791). Nothing in his verbal or written orders supports this. Buried in the docket sheet, one sees an entry that plaintiff should write a letter a month after defense counsel writes his, though this is not in the order or transcript. (JA9, SPA6-19.) Defense counsel never wrote, so neither did plaintiff. The better practice, we acknowledge, would have been to write saying Zabell violated the order; but realistically, the diffident relief of these “couple of sentences” was useless anyway. We needed needles picked out of the haystack; instead, defense counsel provided nothing because he probably didn’t know how he would try the case.
What litigant gets away with this? Discovery orders don’t come often to the Circuit, so we ask you to opine. Any additional witnesses would have been contrary to Rule 26, but, if a few were named, we could have deposed them at least. Instead, we either had to guess or depose fifty witnesses. At trial, the judge additionally excused the nondisclosure because of the “transient nature” of dropzone workers – something about which there was no evidence except Zabell’s ipse dixit assertion. (JA1790). Finally, the judge stated that a certain “transcript” supported his position. (JA1791). Some transcripts had been ordered by then, but he was not looking at the transcript on this motion: that was not prepared until “December 9, 2015.” SPA18. The judge was mistaken; he simply disliked to sanction, but a lack
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of sanction to one side can be a sanction to the other. The judge was obligated to alleviate the prejudice of fifty new witnesses after discovery, only three of which made the cut. It was, for plaintiff, like guessing who would win Miss America.
b. Appeals to Gay Prejudice. Defense witness Wayne Burrell testified that Zarda was “unprofessional, rude [to females,] not talking to them, not being friendly.” (JA1515). In five years of litigation, plaintiff had not a word’s notice of this contention. Zarda, whom Burrell knew was gay, allegedly preferred taking male passengers over females, and asked others to swap passengers. (JA1516). Winstock said this was “common.” (JA1092). Perhaps Zarda didn’t want – as with Kengle and Orellana – to be accused of being part of a sexual triangle. But Burrell characterized Zarda with an ancient stereotype: “that homosexuals distrust, dislike, or are afraid of women.” John Malone, Straight Women/Gay Men, p.9, 1980. The judge held that his and Shaw’s testimony was – in this homonegative characterization – “critical.” (JA710). If so, Burrell should have been identified early; that’s just fair play. Instead, his name was slipped surreptitiously into the JPTO. Additionally, Zarda’s alleged rudeness to women Maynard never proffered as a reason for termination; how can one be a “good guy,” as Maynard testified (JA338, 1546), and be rude to women?
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Defense witness Duncan Shaw then testified, “When you work with [a company] for so long[, you] . . . feel like you’re a part of it.” (JA1598). He flew to Central Islip from California on his dime, and waited days in the courthouse hallway to testify. However, when asked, he refused to speak to us. (JA1598-99). At trial, a multi-leveled bombshell: Shaw relayed that Zarda gossiped with staff about “partying and sleeping with people,” and retold “specifics of what happened during the night. . . [g]oing into physical acts he engaged in,” (JA1577-78), once in the presence of a veteran, his wife, and – gilding the lily – “a young baby.” (JA1579). The physical acts were “bedroom-related” and people allegedly. . . threw their hands up,” leaving. (JA1580). “Bedroom-related physical acts” is a phrase both suggestive and vague: sleeping, sexual activity, urination, showering are among such acts. The judge, however, directed the witness not to detail. This reenforced the implication that these “acts” must have been sexual. (JA1578).
Shaw testified he saw hetero-boyfriends “upset because [of] their girlfriends[‘]” distress at Zarda’s behavior.” (JA1582). Upset so palpable that it sows anger that one can see is hard to imagine. We chose not to explore these vagaries: it was inevitable that either defense witness – who had not been subject to deposition – would malign Zarda further; we had no impeachment for this fanciful pillory, and it would just have made things worse; the judge is not liberal on cross examination, and did not even let us impeach Kengle, even though Kengle
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changed his deposition testimony for Zabell. (JA201-02). Had we taken depositions of Shaw and Burrell, we could have made informed decisions: that’s just fair play. The judge was restrictive; even when we tried to rebut the continual sensationalism of Zarda’s “putting his fingers in his mouth” -- Zarda had a tic in which he touched his teeth -- the judge precluded a response. (JA1642-43). SDLI argued it would have deposed Moore on this minor rebuttal point. JA1641-42. So too would plaintiff have deposed the three defense witnesses. The judge ruled the “mouth touching” was irrelevant to intent, so why did he let the defense harp on it?
Shaw was on the plane with Orellana and poured on aversion for Zarda. He also testified Zarda swapped passenger women for men – the reasons being “pretty obvious.” (JA1583). The phrase was stricken, but that Zabell asked the question, and Shaw answered with revulsion, demonstrates the defense strategy. Let’s not pretend a judge can unring a bell where a dead man is subject to a clarion of vilification as a woman-hating sex addict. Maybe Zarda preferred male passengers because he was an attractive “musclehead” (as defense counsel so described him, JA278), who was not apparently gay; perhaps he preferred no accusations of interest in women. There was no evidence he mishandled a man. If he switched women for men, to suggest his desire to do so was wrong was prejudicial. The Kengle video doesn’t support Shaw’s testimony in the least (EA2):
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Shaw allegedly had to had to “distract” Kengle because the latter was upset that Zarda was making “creepy” expressions. (JA1589).
Watch EA2 and ask, “Where did I see Kengle showing distress? Where does Shaw manifest these ‘distractions?’” Shaw appears to act like any instructor playing to the camera and does not interact with Kengle until landing. At trial, Shaw invoked his skydiving superiority to that of dead Don's. (JA1614). How curious. What is clear is that Shaw disliked Zarda and was close to Maynard, for whom he had testified in 2000. (JA1595). We contend the defense knew Shaw would show up, but hid him. His testimony could not have withstood a thorough deposition, which we would have asked for and gotten if Zabell did not secrete him in fifty names.
Back to the jump: Kengle lands first, then comes Orellana. EA1 at 2:52. She and Kengle then take a pose, not with Shaw – who was there – but with statuesque Zarda, who had allegedly just flirted with Kengle’s girlfriend. (JA786). A jury could have found it inconsistent: why this closeness after what allegedly went on in the plane? The one thing that is certain is that at the moment of landing, Kengle was unaware that Zarda had revealed his sexuality to Orellana – she told him on the ride home. JA481.
That, we contend, was the capstone that turned the scene at JA786 into the disgusted, dismissive tone of Maynard’s “You can. . . get your stuff out!” (JA589).
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Shaw testified that there was a lot of moving in the plane. (JA1590). A passenger practically sits on an instructor’s crotch after they first strap together, then they oddly shuffle on their bottoms on carpeted modular benches out of the plane. (JA794-95). Shaw testified – in opposition to both Maynard and Winstock – that the instructor’s hands would be “far away” from the passenger’s thighs. (JA1590). Far? That’s not true. (JA793 (Shaw’s hands near Kengle’s hips)).
The final defense witness, Curt Kellinger, testified that being gay was okay with Ray, who asked him to look “for anyone. . . talented.” Kellinger “watched [Zarda] jump [and] land. He’s a very nice guy, [and] wants to be near Fire Island because he is gay. . . Ray said, ‘Tell him to come down.’” (JA1629). Kellinger was least harmful to plaintiff, but we had the right to depose his opinion of Maynard’s alleged gay tolerance. Kellinger also added more “speculation that [Zarda] didn’t like” being near women (JA1633) – hearsay, or a ridiculous stereotype of gay men.
c. Defendants’ Homophobic, Disingenuous, Insulting Summation. Lauren Callahan, SDLI’s former office manager, worked with Zarda. She said not only that he was good, but that clients praised his performance. At deposition, Zabell represented her. (JA422). At trial, she had a new job, and on cross, Zabell challenged her memory regarding a “belief” that there were “multiple complaints” about Zarda. (JA1017-18). On redirect, she remembered not a single
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one. (JA1018-19). In summation, defense counsel twisted Callanan’s deposition testimony of “belief” – which she didn’t remember – into fact, (JA1719-1720), emphasizing she had been called by plaintiff. (JA1720). Plaintiff subpoenaed her to testify to minor matters, but Zabell's was a devious vouch: she admitted testifying reluctantly (JA991) and remembering no complaints other than Kengle’s.
Zabell accused plaintiff’s counsel of relying on “passion.” rather than evidence. (JA1716-17). In fact, plaintiff’s summation was demonstrably fact-laden. JA1691-1712. By contrast, defense counsel relied on Callanan’s deposition, and then he got worse: He dropped two shameless bombs: The first involved Dr. Ira Helfand, plaintiff’s damages witness – an older physician, married with adult children. Helfand had long been Zarda’s friend; we chose him because of his intelligence and community standing.
Though explained in detail during testimony (JA940-957), Helfand’s relationship with plaintiff was denigrated in summation as “oddness.” (JA171718). Plaintiff objected; objection overruled. (JA1718). The characterization advanced the stereotype that a relationship between adult men is odd in itself, or at least between men of different generations. Helfand, the older, wiser, more established must have been getting something from younger Zarda. No other reason – and Zabell didn’t provide one – could “odd” describe this relationship than to suggest the nefarious.
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Then, although there was no evidence in Duncan Shaw’s testimony (1574-

1622), Zabell branded his words as proof that Don’s chit-chat at work about

“graphic sexual experiences.” This was a lie, unless one assumes the judge’s

admonition not to go into detail explained the shameless vagary of “bedroom

experiences.”

The next explosion came when defense counsel characterized Winstock’s

sharing his “personal information,” as acceptable in comparison to Zarda’s. First,

Zabell set the scenario:

Question: Have you ever informed a passenger at a tandem jump that you were married and have children?

Answer: Yes[.]

Question: For what reason?

Answer:

[U]sually with older women when. . . extremely nervous[, I] tell them [I am] married with children. Tends to calm them down. [I give] them. . . security knowing [I] have a reason to make this work.

(JA1721).

Then came the blast. Defense counsel added,

That sounds like a legitimate reason for sharing some personal information.. . . But there is a difference between relating to someone that you just broke up with your boyfriend while you’re falling from the sky and saying to someone, Look, I’m married. I got kids. I have a reason to make it to the ground. You’re going to be safe. There is no need to worry here. I think that there is a difference, and I. . . know that you guys are smart enough to pick up on that.

(JA1721-22) (emphasis added). What the difference was, defense counsel could

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never say. Had he done so would be to admit the image of a traditional, heterosexual family is good and calming, whereas mentioning gay orientation is not so delightful. However, to Don, his coming out at work diffused jealousy and made plain to the passenger (and her partner) that he had no sexual interest. To paraphrase Zabell, that’s seems a legitimate reason for sharing personal information. His suggestion otherwise was an appeal to prejudice. The defense repeated again and again that Zarda wasn’t treated differently because he was gay, but it concluded its case with an appeal to differential treatment. Defense counsel used discrimination to defend discrimination. This strategy was an outrage to the integrity of the judicial forum.
Plaintiff attempted to rectify this homophobia in rebuttal, but was stopped by the judge. We attempted to recharacterize the relationship between Helfand and plaintiff as one of advice. (JA1745-46). Evidence in the record explicitly showed this. (JA940-957, JA122). Zabell objected; the judge did not just sustain, but rubbed the idea into the ground by striking the remark. (JA1745-46). The Court later explained he allowed the “oddness” comment because
that is fair for a lawyer to do in terms of the credibility of witnesses, what relationships may have existed is fair argument, arguing that it was odd. (JA1693). But wait: not any unexplained, ad hominen attack is allowed in summation, in a trial about about discrimination against gay people who have historically been regarded as “odd.” Also, the judge did not apply the same rule to
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us; he stopped our attempt to recharacterize Helfand as credible, the relationship not odd but natural. We respect Judge Bianco, but a lack of recognition of bias is why we have Title VII.
SUMMARY OF ARGUMENT This trial about bias was rendered imbalanced by bias. Grounded not just in a pleading, but undisputed evidence played out in real time with new actors. This is a textbook channel to clarify Title VII as protecting sexual orientation, in this period of constitutional and EEOC protections afforded gay people, and bring Title VII caselaw into line with both the statute’s text and the tenor of Supreme Court decisions. True, plaintiff got an adverse state-law verdict, but the judge, over objection, instructed the jury under a burden – “motivating factor” – higher than required under Title VII. Plus, he threw in a McDonnell-Douglas charge, despite acknowledging Circuit authority disallowing it. Thus, there’s at least one answer for plaintiff’s loss: the instructions held him to an unfair standard. Though hundreds, perhaps thousands of Circuit opinions morph state and federal standards, the jury didn’t know this. Further, while the judge felt he couldn’t extend Title VII to this case, he defied the Circuit rule that the bench does not instruct on burden-shifting. Notwithstanding direct evidence, Zarda lost. This demonstrates the NYSHRL, at least as instructed, is insecure compared to Title VII, and, here, the
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judge permitted the defense to commandeer the case with irrelevancies to manipulate the jury with unverified, additional motivations for termination, any of them potentially “determinative.” Or perhaps the jury thought the evidence did not support burden shifting: a de minimus legal issue the judge did not fully explain.
This debacle of dispute resolution occurred at the right time to recognize that “sex” under the CRA includes sexual orientation. The definition of “sex” has been debated over decades, but eventually, courts always reject reasoning that departs from the purpose of a remedial law. A Circuit panel recently gave the gift of equity to a transgender litigant, based on the deference afforded the EEOC in Macy v. Holder, 2012 EEOPUB LEXIS 1181 (E.E.O.C. Apr. 20, 2012). Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 386 (2d Cir. 2015). Fowlkes would have been unthinkable without Macy, which is grounded in text; the modest relief provided to a unique plaintiff shows the Court recognizes that Title VII applies to sexual minorities and the EEOC is owed deference. The Zarda Estate took this case at no small effort not simply to win money, but to clarify Title VII when it is impossible to reconcile Oncale with Simonton, Dawson, Windsor and Obergefell (full citations infra).
Coincidentally, after Obergefell, the EEOC ruled what many have always believed true – that sexual-orientation discrimination is sex discrimination. In part, it is associational discrimination, and also it feeds on stereotypes. Baldwin v. Foxx,
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2015 EEOPUB LEXIS 1905 (July 15, 2015). (JA.709-22). Associational discrimination is actionable for race, so why not sex? This is a question that the Court must answer to mend inconsistency. This Court held that associational discrimination extended to the plaintiff’s “own race, “and not just the person to whom he associated. Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008). Holcomb post-dated Simonton and its nuance renders this Court the one to make the statutory reconciliation.
Though the issue is not on point, we contend that because gay people have Equal Protection to marriage, courts should not avoid a Constitutional analysis where gays are held to a different standard when alleging claims of stereotyping or associational discrimination; heterosexuals can. Simonton was brought towards the end of a long period of LGTB intolerance and decided on rickety precedents. We respectfully contend that appellate decisions gerrymander lesbians and gay men out of Title VII. Plaintiff should be tendered relief under Title VII, even if his NYSHRL trial was fair.
It was not in the least, however, and the Court should give guidance on potential retrial. Point II is inessential to Point I, given that plaintiff lost Title VII on summary judgment. Point II demonstrates, nonetheless, that the verdict under state law should be vacated as a repeat of the treatment accorded people of difference in American courtrooms. Discrimination plaintiffs rarely have a
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“smoking gun.” Here, plaintiff came close: a recording with the slur of “escapade.” Think of that word applied to the associations of an interracial couple. Additionally, the evidence showed the employer accepted a practice wherein one could not convey gay orientation but could come out as straight. This is plain disparate treatment.
If remedial laws are to work, they must be enforced. It was therefore detrimental for the jury to know that defendants fired plaintiff in 2001, allegedly for saying he was gay. This is subtle, but not everyone in New York lives a life where gay rights are a given. Plaintiff disputed he was terminated in 2001 for saying he was gay, but assuming it was true, the reasoning of the 2001 termination tainted plaintiff as defiant, making him the victim in 2010 of what was not protected in New York in 2001. Admitting the 2001 evidence punished plaintiff for identifying as gay in 2010. Plaintiff moved in limine to exclude this and much other evidence, but defense counsel felt free to open with this and other issues sub judice, moving onto plaintiff’s protected use of worker’s compensation. The compensation issue was not a claim plaintiff made against defendants, but it made Zarda seem troublesome: so gay as to offend the sensibilities of women, and prone to workplace injury.
Defense counsel played to bias and obfuscation throughout litigation and trial. The judge gave plaintiff a few nice rulings –the residual non-hearsay
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paragraph on damages, for example – but he totally slighted Fed. R. Civ. P. 26, permitting the defense to try the case by ambush, and allowing 50 new witnesses dumped into the pretrial order. Plaintiff’s attempt to remedy this well before trial failed. We wanted identification and depositions; the judge ordered tiny relief with which the defense didn’t comply. The judge did nothing to enforce his order, and blamed plaintiff for not moving on the issue, again. Ultimately, plaintiff didn’t know who of these witnesses would testify, nor the substance of their evidence. The three witnesses brought in were Maynard’s close compatriots and it is likely he knew they would arrive. They were smuggled into a list of co-workers, to preclude the massif of moves plaintiff would have to make to get depositions. Free to testify previously unquestioned, they pilloried Zarda with stereotypes of gay men.
Further reviling these wounds, defense counsel’s summation appealed to intolerance. He argued, without explanation, that plaintiff’s evidence of disparate treatment was fair; then, again without evidence, commented on plaintiff’s relationship to an older, ostensibly heterosexual man, as “odd.” The implication was unmistakable, and one that underlies all homophobia: that a connection between two adults of the same sex is unsavory. The judge then forbade plaintiff’s challenge to this narrow-mindedness, and reinforced double standards.
The judge gave a complicated, protested instruction including McDonnellDouglass burden shifting and “determinative factor,” which doesn’t apply to Title
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VII, nor, as far as we can see, the NYSHRL. There’s no surprise that the jury just wanted out. This trial shows that gays are still misunderstood, and that “sex” should be recognized as including “sexual orientation” If gay stereotypes can be a defense to a class now protected Constitutionally, then there are inconsistencies to resolve. Zarda is gone, but his estate deserves the rights he was entitled to while alive.
STANDARD OF REVIEW Summary dismissal is reviewed de novo, Sec. Plans, Inc. v. CUNA Mut. Ins. Soc’y, 769 F.3d 807, 815 (2d Cir. 2014), and evidentiary errors reviewed for abuse of discretion. Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014). Such abuse may be considered in the totality. U.S. v. Certified Environmental Services, Inc., 753 F.3d 72, 96 (2d Cir. 2014). Attorney conduct is examined as to whether intolerant statements appealed to a jury’s potential biases, depriving the opposing party of a fair trial. Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 540 (2d Cir.1992). Jury instructions are reviewed de novo; an improper instruction that instructs the jury on [the] burden of proof is generally not harmless. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 115-16 (2d Cir. 2000).
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ARGUMENT I. Sexual-Orientation Discrimination Is Sex Discrimination.
A. Baldwin Undoes Simonton, and Constitutional Developments Require a Rethinking of Title VI.
Simonton holds that sexual-orientation discrimination lacks the shelter of Title VII. For reasons explained below, Simonton need not be overruled, but merely recognized as inconsistent with current law. For example, Baldwin, which is entitled to Skidmore, if not Chevron deference accepts sexual-orientation discrimination for what it is: stereotyping, because a man would only date a woman and vice versa; or associational discrimination, as it marginalizes the plaintiff because of his sex, not just that of the person he associates. See Holcomb, 521 F.3d at 138 (racial association).
Baldwin concluded that “‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.” Baldwin, 2015 EEOPUB LEXIS 1905, at *6. If “an employer suspends a lesbian employee for displaying a photo of her female spouse. . . but does not . . . a male employee for displaying a photo of his female spouse. . . her employer took an adverse action against [the lesbian] that [it] would not” had she been male. Id. at *7. Some courts agree: see Hall v. BNSF Ry. Co., 2014 U.S. Dist. LEXIS 132878, at *6-9 (W.D. Wash. Sep. 22, 2014); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002); Videckis v. Pepperdine Univ., 2015 U.S. Dist. LEXIS 167672, at *15-16
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(C.D. Cal. Dec. 15, 2015) (“the distinction is illusory and artificial[.]). None of these cases bind the Circuit, but far-flung districts are where law develops.
Finally, sexual orientation “involves gender stereotypes.” 2015 EEOPUB LEXIS 1905, at *9. Discrimination exists when employees are treated differently “based on their appearance, mannerisms, or conduct,” but “[s]exual orientation discrimination and harassment ‘[are] often, if not always, motivated by a desire to enforce” gender norms, including those of romantic and sexual attraction. Id. at *1 (quoting Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002)); Terveer v. Billington, 34 F.Supp.3d 100, 116 (D.D.C. 2014) (gay man proceeds on affectional-stereotype theory). Even if the “norms” are defined by heterosexuals, that is either a distinction without a difference or discrimination per se.
These cases pre-date Baldwin, and now apply with greater force. The EEOC is entitled to deference either under Chevron, as the agency charged with enforcing Title VII, or insofar as it is able to persuade. Skidmore, 323 U.S. 140 (1944)). Baldwin is persuasive, and at least one court has already so found. Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. LEXIS 146663, at *8-9 (M.D.Ala. Oct. 29, 2015).
The EEOC contends, as does plaintiff, that Simonton was incorrectly decided. As amicus to the Eleventh Circuit in a pending case, the agency aptly noted that Simonton relies on cases “implicitly overruled by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Servs, 523 U.S.
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75, 79-80 (1998),” as well as the discredited Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.1984), which held Title VII forbids discrimination only “against women because they are women and against men because they are men.” But Ulane predated Price-Waterhouse. Simonton also cites DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir.1979), which held that Title VII does not protect against sex stereotypes. DeSantis is no longer good law given Price Waterhouse and the 1991 amendments to the CRA. Cf. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875 (9th Cir. 2001) (recognizing abrogation). Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.1982), which Simonton also cited “is four-paragraphs, predated Price-Waterhouse and Oncale, and relies entirely on DeSantis.” The agency makes a very persuasive case against Simonton. Amicus Brief in Burrows v. The College of Central Florida, (11th Cir.15-14554) at Point D. The brief is found at http://www.eeoc.gov/eeoc/litigation/briefs/burrows.html
Skidmore tells us that agency opinions “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,” 323 U.S. at 140, even if rendered in an appellate brief. Auer v. Robbins, 519 U.S. 452, 462 (1997). The EEOC’s position is that Simonton is feeble, if not lifeless. A panel of this Court perhaps signaled as much in Fowlkes. 790 F.3d at 386. Fowlkes made no grand pronouncements, but extended equity to a transgender litigant based on the EEOC’s Macy v. Holder, 2012 EEOPUB LEXIS 1181 (E.E.O.C. Apr.
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20, 2012). Without extended analysis, Fowlkes would not appear to be incompatible with Simonton, but demonstrates that judges of the Circuit see the coming change pertaining to the protections afforded the LBGTQ. It would have been easy to affirm in Fowlkes, given the significantly late filing. 790 F.3d at 382.
It was undisputed that plaintiff’s expression of his sexual orientation was a motivating factor in his termination. It is undisputed that, pre-suit, dissemination of “personal information” was never prohibited at SDLI. It was undisputed that the decision maker made no investigation into the bona fides of the entire complaint against plaintiff – just the coming out part, which was verified. Finally, there was no dispute that the passenger agreed to physical contact including at the hips. (JA1070-72). The defense was anemic, yet survived on narrow-mindedness and salacious innuendo. The judgment should be reversed, and summary judgment reopened. If the case should be tried on liability, the district court should reexamine the error of the totality of the rulings challenged in Point II.
B. Jury Instructions Render the Error Harmful. Plaintiff was denied a fair trial. Nevertheless, we must answer theoretically: Assuming he got a fair trial, since the jury found against him, why would the appeal matter? The answer is unassailable. Although there are perhaps thousands of cases that dispense New York and federal claims on summary judgment, this judge instructed the jury under the higher “determinative factor” standard, over
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objection (JA1713, 1715). He knew well the difference. Monette v. Cnty. of Nassau, 2015 U.S. Dist. LEXIS 42523, *15, *40 (E.D.N.Y. Mar. 31, 2015) (Bianco, J., “determinative factor” means “because of” or “but for”). By contrast, a Title VII violation is proved “when the complaining party demonstrates that. . . sex. . . was a motivating factor for [adverse action even if] other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
There can be a sizable gap in the standard of proof between “motivating” and “determinative.” Take this case: It was undisputed that plaintiff told Orellana he was gay. We contend that was not just a factor but the motivating factor for Zarda’s termination. But her boyfriend also complained that her hips were uncomfortable. Touching the hips was so tenuous a reason for firing a gay plaintiff whose job required touching, and Maynard emphasized at the termination meeting that communication of “personal information” was the reason for termination. (JA388). Hip discomfort and “whispering” only arose when plaintiff inquired of it at the termination meeting (JA358, 362), but Maynard stopped investigation once plaintiff admitted he likely told a customer he was gay – he didn’t even talk to Orellana. (JA 347). The other reasons dominated the trial, because after losing summary judgment, what was left was discrimination, which the judge allowed: “odd” relationship, women-hating, sex-talking and creepy-face defenses, and diversions that Maynard either denied, or said nothing about whatsoever.
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(JA372). The Judge’s decision was buttressed by further discrimination and the unrevealed witnesses. In addition, though denied by the Maynard, plaintiff’s use of worker’s compensation surfaced immediately in opening, as well as evidence of plaintiff’s 2001 termination (JA919, 929), allegedly based on his stating he was gay. A termination for such a reason would have been legal in New York in 2001; the compensation issue was protected, but made Zarda seem troublesome. These secondary and tertiary reasons, if believed, could easily have led a jury to conclude that although sexual orientation might have been a “motivating factor,” one or more of the other ephemera “determined” the outcome, denying him relief under the judge’s instruction. His instructions further confused the jury with burdenshifting under McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). This Court has repeatedly said this is a bench issue. See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 252 n.6 (2d Cir. 2014).
Analyzing the facts under the “motivating factor” standard, as Title VII permits, allows for a different outcome. A jury easily could find that discrimination against plaintiff as a gay man “played a role” in his termination, even was not the “but for” cause. This Court has recognized that “but for” is more “defendant friendly” than “motivating factor.” Recently, in Cassotto v. Donohoe, 600 Fed.Appx. 4 (2d Cir. 2015), this Court upheld a retrial in light of University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), which notes
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that “but-for” causation is not required under Title VII. Id. at 2523. Nassar “made clear that the ‘substantial or motivating factor’ standard on which the district court instructed the jury” was not just inaccurate but plain error that “might have affected the verdict”; a correct instruction “might have led to a different verdict.” Cassotto, 600 Fed.Appx. at 5-6 (emphases added).
Cassotto applies here. A finding under one causation standard means not that a jury would reach the same result under the other. Thus, even with the same evidence, plaintiff can prevail on remand.3 These instructions, going to the burden of proof, were not harmless. Gordon, 232 F.3d at 115-16.
C. Baldwin Renders Simonton Stale. New Constitutional Law also Requires Reconsideration of Judge-Made Omissions of Gay People from Title VII.
One panel may generally not overrule another, but this rule is inapplicable when “an ‘intervening Supreme Court decision. . . casts doubt on. . . controlling precedent.’” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 24-25 (2d Cir. 2015) (citing Wojchowski v. Daines, 498 F.3d 99, 106 (2d Cir. 2007)). The Supreme Court “need not address the precise issue already decided[.] Rather, this Court employs a practical approach to determine” if “a conflict, incompatibility, or inconsistency between [earlier] precedent and” intervening Supreme Court decisions. Id. The determination is “subtle,” but “requires [one
3 Again, it is also unclear that New York law requires “but for” causation.
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panel] to conclude that a decision of a[nother]. . . is ‘no longer good law.’” Id. See Union of Needletrades v. INS, 336 F.3d 200, 203 (2d Cir. 2003) (single-panel catalyst theory for attorneys’ fees no longer extends to the Freedom of Information Act as Supreme Court rejected the theory under other laws). Also, there is the subtly different “mini-en banc” procedure, where a panel circulates a proposed opinion to active members “and overrules [the] prior panel” if there is “no objection.” Diebold Found., Inc. v. C.I.R., 736 F.3d 172, 183 n.7 (2d Cir. 2013). Compelling reasons to change panel precedent include “a change in applicable regulations, a judicial decision dealing with a related or analogous issue, a change in the social or economic context of an issue, or some other important new information.” Bethesda Lutheran Homes & Servs. v. Born, 238 F.3d 853, 858 (7th Cir. 2001) (Posner, J.). We present all of these. While Title VII is not per se implicated by the gay-marriage cases, they are not consistent.
Indeed, in addition to rejecting statutory norms offered by the Supreme Court, this Circuit’s jurisprudence vis-à-vis sexual orientation under Title VII is incompatible with United States v. Windsor, 133 S.Ct. 2675 (2013) and freedom of association, the underpinning of Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Neither overrules Simonton: they just make it look strange. The Circuits made up the law in the area, and, now inconsistent, the Circuits should free gay people from judge-made jurisprudence, never sanctioned by the Supreme Court. Affording
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constitutionally heightened scrutiny to gay people, not a point on this appeal, creates a new legal world in which Simonton does not fit. The Constitution cannot afford gay people access to one right, then an arguably lesser right by resort to precedent that, at least initially, did not rely on canons of construction as outlined in Oncale: social norms; or legislative non-action. Simonton relies on both. Title VII’s wording is broad, and has been interpreted to include scenarios not considered at its adoption. Sex stereotyping is one scenario and a basis to read “sex” to include “sexual orientation.” Simonton stands in the way, but one Southern District Judge just asked the Circuit to “erase” the “impractical” lines drawn between sex stereotyping and the limitations of Simonton. Christiansen v. Omnicom Grp., Inc., 2016 U.S. Dist. LEXIS 29972 (S.D.N.Y. Mar. 9, 2016), p*49-50. Now is the chance.
The Constitution bestows gays heightened scrutiny. What difference does that point make to Title VII? Well, social exclusion of the LGTB reflects disapproval of their nonconformity with gender-based expectations. Private employers are not bound to afford all Constitutional protections in the workplace; but courts, interpreting Title VII, must provide Equal Protection to gay and lesbian people as afforded straights; gay people cannot be carved out of Title VII because they belong to a unique category. The recent Supreme Court decisions regarding
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LGTB jurisprudence are inconsistent with a regime – unmoored in legislative history – that Title VII does not include lesbians and gay men.
The attempt to divine congressional intent under Title VII is futile and some attempts offend statutory construction. As the late Justice Scalia held, when the Supreme Court extended same-sex workplace harassment under Title VII, he acknowledged it was
not the principal evil Congress was concerned with. . . . But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Oncale, 523 U.S. at 79-80. Congress adopted Title VII, without suggestion that sex stereotypes were illegal, see Price Waterhouse, nor sexual harassment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). This Court did not recognize its nuanced view of associational discrimination until 2008. Holcomb, 521 F.3d at 138. Associational discrimination was extended to race because the Supreme Court held that the “person aggrieved” provision of Title VII “allowed standing as broadly as is permitted[.]” Thompson v. N. Am. Stainless, 562 U.S. 170, 176 (2011). In that case, the Court extended Title VII to what the Sixth Circuit wrongly characterized as “third-party retaliation.” Id. at 172. If one’s partner cannot be a victim of discrimination, and one’s partner can be of the same sex, then why can’t a “person
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aggrieved” be a person associated with a particular sex? This previous question is one Holcomb did not have to answer, but the Court should now.
The losing party in Holcomb argued: Congress never amended Title VII to include associational discrimination, but two of three judges in Simonton rejected this argument: The aggrieved “employee suffers discrimination because of the employee’s own race.” Holcomb, 521 F.3d at 139. So too does a lesbian endure discrimination based on her sex if disfavored against by association with another woman. Had Zarda been a woman, the suggestion of his sexuality would not have been a problem, as the evidenced by Winstock’s experience, which the defense baldly argued the jurors should see as obviously different but just fine. This was a naked plea to justify disparate treatment of heterosexuals and homosexuals. The summation was prejudice in action. Holcomb is this Court’s Baldwin, dressed in the language of race. Extend Holcomb to same-sex partners and Simonton is dead.
The Circuit has disallowed gay people access to Title VII, however and one reason posited is the lack of Congressional clarification. However, congressional inaction is an improper method of divining congressional intent. Simonton agrees with this proposition, then applies it nevertheless. 232 F.3d at 32-36. Simonton led to Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), a prototypical “bad facts/bad law” difficult to reconcile with City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978). Manhart applies the “simple test” under
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Title VII “of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.” Id. at 702. Zabell’s obvious but unexplained message, “there is a difference [between Zarda and Winstock], and I . . . know that you guys are smart enough to pick up on that.” (JA1721-22). The defense summation gathered all the simplicity and differential treatment that requires Title VII protection. Manhart.
II. Prejudice Rendered the Trial Unfair. A. The 2001 Termination
The defendants’ justification for firing Zarda in 2001 – when he had effectively no protection from sexual orientation discrimination – was that he identified as gay. (JA335). Maynard testified that two women came to him “in tears” complaining that Zarda had revealed “his escapades.” The complaints are conveniently undocumented. The idea that not just one woman, but two, seriatum, in tears, would be offended by a gay man outing himself seems, if possible, fanciful. Straight women and gay men have a special rapport: despite gender differences, romantic interest is not part of the equation in such a bond, making relations less sexually uptight. John Malone, Straight Women & Gay Men, 1980, p.23.
Assuming the truth Maynard’s reasons for the 2001 termination, it was technically legal, given Title VII as interpreted and New York law. It was only in
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2003 that New York changed, and such change required great care in the presentation of evidence. Zarda never alleged his 2001 termination was discriminatory, nor could he: he disbelieved Maynard’s reasons and only learned them – if true – in this litigation. Nevertheless, while Maynard’s reasons for 2001 seem just weird, we cannot prove them pretextual and don’t need to.
Why then was the reasoning of the 2001 termination allowed into evidence? We contend it was so prejudicial as to outweigh its probative value (JA1135, JA198 mistakenly referring to 2001 as “1990”), which was none. It probably lost plaintiff the trial. The jurors could have reasoned that Maynard’s “determinative factor” was to give Zarda what he deserved: Termination for again “saying gay.” In another context, we might have pointed to Maynard’s reasoning as evidence for us, but we did not think such it was relevant given a new law, and likely prejudicial. The suggestion that Zarda kept coming out, even if true, goes to propensity, which is never allowed under Fed.R.Evid 403. More important, given remedial legislation, Zarda should not have to carry the burden of an era when he could not have gone to court and examined the pretext of Maynard’s unlikely explanation. The court said it allowed 2001 into evidence just because it was “fair game” (JA1135). But his ruling deserves no reverence because it “did not explain the application of this standard to the facts. . . bare conclusion[s do] not invite deference.” Wade v. Franzen, 678 F.2d 56, 58 (7th Cir.1982) (Posner, J.).
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“Saying gay” in 2001, if it went to intent was a reason to exclude it from evidence: The intent Maynard could legally have in 2001 was not the intent he could have in 2010. Maynard admitted he never told plaintiff not to tell customers he was gay (JA103-04), assuming such direction were legal. Saying and being are so intertwined that that the former must have assurance if the law means anything.
This propensity evidence was also remote in time, and, in the intervening years, Maynard hired plaintiff again because he was a “good skydiver . . . a good guy.” (JA1487). Perhaps Maynard believed he should tolerate a “seemingly straight” gay man on his premises; but could not in practice. Don was a good worker, but it was just was “not working anymore for Maynard for [him] to be working [t]here.” (JA589; EA5, 4:29). Prejudice is mysterious, but the facts of the 2001 termination – and even with an in limine motion pending, the defense opened on (JA928) – were wholly prejudicial; it allowed the jury to conclude that plaintiff was wrong because he would not stop identifying as gay. The starting date of legislation is the law. No court would allow a plaintiff to sue on pending legislation, or after limitations had expired. Why then would conduct plaintiff could not sue for, and that occurred before the effective date of the NYSHRL, come into evidence? There was no reason, and the district court’s explanation was weak. Wade, 678 F.2d at 58. The judge merely said 2001 was “fair game” and did
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not even address the prejudice aspect. JA.1135. Zarda should not have had to carry the burden of a less-tolerant era
B. Worker’s Compensation An injured employee may not sue his employer for injury under the Worker’s Compensation Law (“WCL”). WCL aims to compensate worker accidents without determining fault. Cline v. Avery Abrasives, Inc., 96 Misc.2d 258, 264-65 (Sup.Ct. 1978). WC is a societal bargain, and discrimination against employees who use it is illegal. WCL §§ 120, 125. Its users are therefore members of a protected class. A court would never allow evidence that, in addition to saying he was gay, plaintiff said he was German or had a black partner. Nevertheless, counsel made Zarda’s use of WC in his opening (JA929), to which we objected, and had objected in limine. (JA199). The judge immediately overruled us, (JA929) and later let the WC issue into evidence over objection, JA933-34, with a complicated credibility analogy. Id. Plaintiff only speculated about this at deposition, and defendant denied he fired plaintiff for using WC. (JA1473). There was no relevance, and it was prejudicial given WC protections. Thus, Zarda was doubly discriminated against at trial. WC gave the jury another potentially “determinative factor.” Its disclosure was not only prejudicial but affronted McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). In that seminal case, if the employee makes a prima-facie showing, the employer must
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articulate a “non-discriminatory reason” for adverse action. In this case, the articulation was Kengle’s complaint, MSJ.28-29, not plaintiff’s use of WC. The standard for the employer’s articulation might be minor, but it must be “nondiscriminatory.” 411 U.S. at 802. A court cannot allow an employer to articulate that, say, “we didn’t fire her because she was black, but because she was a Jew.”
Employment discrimination exists, but is hard to prove, and this judge’s holding, if not deconstructed, would encourage plaintiffs to pursue weak alternative claims. In this case, the WC issue was pure speculation that would not have survived dismissal. The district court’s allowing it into evidence – despite agreement by both sides that it was not the articulation – was prejudicial, and contrary to public policy.
C. Trial by Ambush Witness preclusion is severe, but Rule 26 makes sanctions self-executing to avoid ambush. Rules 16(f) and 37(e) also permit sanctions for gamesmanship. Here, a mere seven witnesses identified under Rule 26(a) (initial disclosures) JA677-78, morphed into 57 in the JPTO. JA694-97. The defense did not comply with the scrap of relief the judge afforded plaintiff in response to this list; we contend the defense knew the three defense witnesses they would call and buried them in fifty
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to throw us off scent. Litigation as such is contemptible, and so, in itself, is basis for reversal whatever the defendant intended.
Each of the three new witnesses had testified for Maynard before (JA1595), at least one flew in at his own expense. (JA1598-99). The defense easily could have identified them under Rule 26, or limited the JPTO to three new witnesses. Even when plaintiff moved for a more definite statement, had the court ordered the defendants to pick a reasonable few out of 50, it could have avoided prejudice; plaintiff could have moved to reopen discovery, take short tele-depositions, and the parties would be on equal footing. Instead, defense counsel was coy, and the judge did nothing to ease our burden – he did not even remedy Zabell’s ignoring the mini-relief he ordered. Each witness took the stand to testify to matters unheard by his team or plaintiff, who was not there to rebut.
Further, we contend the defense (newly identified) testimony was not only irrelevant but grounded in gay stereotypes. We think it fair to sum the defense case as making Zarda seem like a lady-hating pervert. This prejudice was exactly what plaintiff feared in making his in limine motion (JA197-200): an appeal to homonegativity, propensity, and the values of a society where some still consider gay orientation immoral.
We hope this Court finds this ambush nakedly unfair; and reversible error. What happened here was no harmless error. With lack of notice, we had to flip a
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coin to decide what would be worse: cross-examine and ask dreaded questions to which we did not know answers, or ignore the witnesses to send the message that the testimony had no bearing on the termination. It didn’t, in fact; it was only Zarda’s saying gay. Of course, whether or not this is true is irrelevant: prejudice blinds even the intelligent. Given the verdict, the strategy we chose didn’t work. That would be our fault but for the fact we were not on notice, despite Rule 26(a)(1) and two motions to avoid defense counsel’s underhandedness.
Rule 26 requires witness identification as discovery begins, not well after it’s over. The statutory sanction of exclusion is “self-executing.” Rule 26(a)(1); Lopez v. City of N.Y., 2012 U.S. Dist. LEXIS 83611, at *3 (E.D.N.Y. June 15, 2012). In practice, courts forgive late disclosures if the error is harmless or can be rectified. Lavigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504, 510 (N.D.N.Y. 2010). But 50 late depositions weren’t a workable option. The district court fashioned a micro-remedy in comparison to the disclosure of new witnesses, and it was not complied with. Rather than blame the defense for its failure, the court blamed plaintiff, even though we asked a year in advance to correct the ambush; as the case got closer to trial, the self-executing sanction was the only proper response. It is drastic sanction, but consider the alternative: a party who, under the rules, is entitled to examine a witness before trial knows nothing of the witness’ testimony until trial. That’s unfair and not what the Federal Rules require.
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An attorney can make an informed decision not to depose, but the rules require the party be allowed to make that decision in discovery. Defendants’ amended initial disclosures contained seven witnesses. (JA677-78). Defense counsel’s intent was not to call 57 witnesses, but to engage in sharp practice – to make it impossible for plaintiff to know which of 57 would be called so that we couldn’t adequately prepare. Let’s not kid anyone: actions like this don’t happen in the absence of recklessness or bad faith. That’s why there is Rule 26.
By trial, plaintiff moved to preclude their testimony. The court waived off the motion, noting that we should have made another motion a month before trial. (JA1791). Thus, arguably, because of defense gamesmanship, we should have taken time from preparing for trial and concentrated on unknown witnesses. This was such an impractical suggestion given these facts as to make it a charade of federal procedure.
We could do nothing but hope for the best. That’s not a federal trial works. This Court has defined “trial by ambush” as the late disclosure of a single witness, United States v. Baum, 482 F.2d 1325, 1332 (2d Cir.1973), or an expert report. United States v. Kelly, 420 F.2d 26, 29 (2d Cir.1969). Withholding 50 names – only a few of which would be called – until after discovery did nothing other than to insulate all new witnesses from scrutiny. The rules provide a presumption of no more than ten depositions for each side at seven hours each. What defense counsel
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did, in this case, was appalling, and the judge’s response didn’t enforce plaintiff’s procedural – and given the testimony – substantive rights.
Ultimately, Burrell, Shaw and Kellinger each then characterized plaintiff as a sex-crazed, women-hating, oversharing lout. These homonegative stereotypes, as discussed below, were immaterial to the contested issue: was plaintiff terminated for identifying as gay or just a complaint, no matter the subject? Had these witnesses been identified, they could have been deposed. Depositions allow for sifting cross-examination and allow impeachment at trial. Witnesses may be examined for the first time at trial, and for strategic reasons an attorney might go that route. But we would not have; we wanted to know who would testify as to what, and the rules allow us that right.
We contended Shaw outright made up his story. So, too, Burrell, about whose suggestion that Zarda was rude to women we’d never heard of before. Finally, on some key issues such as “any complaint leads to termination” we know Maynard lied. We asked for but were denied a “falsus in uno” charge. (JA.1663). The judge said this charge is disfavored, id., but not so. Sims v. Blot, held it “fits within commonly accepted practices.” 354 F.App’x 504, 506 (2d Cir. 2009). If the evidence supports it and it fits the fact, we deserved that charge. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 101 (2d Cir. 1999). At a minimum, Maynard,
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Kengle and Orellana were all impeached from deposition testimony. (See JA.1573).	  
The judge precluded two of plaintiff’s proposed rebuttal witnesses, however, the two executors. He ruled that their minor proposed testimony had “zero probative value.” (JA1157). In fact, we contend both Melissa Zarda and William Moore had brief, relevant testimony, for the reasons stated on the record. Id. (Don went on a gay cruise because he lived alone in an airport shack; he was not a hedonist as the defense characterized him). See also JA.683-84 and JA.812 (PX 46 – photo mismarked in original ecf appendix as PX 37) (Don touched his teeth all the time, not just with Orellana.) See also JA1426-27 & JA.201 where the judge disallowed us to point out that Kengle changed deposition testimony as requested by Zabell)). This testimony would have taken little time and had some “tendency to make [some] fact less probable.” F.R.E. 401(a). We would not appeal on these preclusions alone, but we deserved modest rebuttal; and evidentiary errors added up. The judge gave us some good rulings, we won’t deny, but the defense objected to nearly everything, even demanding foundation of his clients’ business records supplied in discovery. (JA.958-60). So even if we won some rulings, that didn’t mean the defendants’ overruled objections or evidence it proffered had merit.
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D. Appeals to Prejudice This was a case of a customer complaint – and Maynard admitted there would always be unhappy customers – and the identification of plaintiff’s sexuality to a customer. There was direct evidence of discrimination, plain evidence of disparate treatment and overwhelming evidence of pretext that – as Maynard successfully struggled to have the jury believe – any complaint generates termination. But Maynard admitted this not completely true, which means this “rule” didn’t exist, or only applied to Zarda. A discrimination plaintiff will rarely have “smoking gun” evidence – and rarely in recorded form. Prejudice manifests itself subtly, everywhere. We have no evidence of juror bias, but many indications that the defense resorted to the theme that Zarda was a gay stereotype. The judge apparently couldn’t see what was happening, despite our objections. The defense strategy worked, but this prejudice must never prevail at any trial – especially one involving claims of bias. Pappas, 963 F.2d at 540 (regional bias) (citing Koufakis v. Carvel, 425 F.2d 892, 905 (2d Cir. 1970) (reference to mafia) and Minneapolis, S. P. & S. S. M. R. Co. v. Moquin, 283 U.S. 520, 521 (1931) (Jackson, J.) (unspecified prejudice in summation warrants new trial even in the absence of objection). The word “odd” means abnormal; in summation, Zabell impugned Dr. Ira Helfand in a way that suggests to us that he was getting something from Zarda,
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(JA1717-18), even though Helfand identified ostensibly as heterosexual. (JA940). Helfand, the owner of an urgent-care center, had known Zarda for years; they remained associated by email and phone, an occasional visit when their paths overlapped. (JA945). He regarded Zarda as “mind boggled” when suspended: plaintiff thought it absurd that “a gay guy was being accused of being sexually inappropriate with a woman.” Helfand recounted Zarda’s anger “that he was not [shown] the video that” would demonstrate “no misconduct[.]” (JA944). “All the instructors are strapped to their customers, and [Zarda] was infuriated for. . . protecting his[, and even] being penalized.” (JA946). He summarized Zarda’s feelings at termination as “extremely concerned about his future. He did not think he would be able to work at another skydiving facility so long as this cloud [hung over him. Skydiving] was his livelihood, how he viewed himself[.]” (JA951). “He started to spend more time BASE jumping. . . [and] didn’t think he” could be an instructor. “He was at times explicitly suicidal in his thinking,” expressing “the thought repeatedly. . . that he just did not see any way out[.]” He believed “[t]here was no way he was going to be able to put his life back together. . . no point in staying alive.” (JA951). 5
5 BASE jumping is free-falling in a wingsuit from Building, Antenna, Span – aerial bridges – and Earth, the last usually cliffs in the fjords.
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Helfand knew Zarda and cared about him. They shared no “oddness,” yet the judge allowed defense counsel to leave the jury with the impression that two male adults were odd because “that’s what lawyers do” in questioning credibility. (JA1745-46). But the counter-suggestion that theirs was a normal relationship based on advice – suipported by evidence – was not only alledgedly objectionable but stricken. Id. The judge’s rationale was that he didn’t “remember” such evidence. (JA940-957). A judge traditionally notes that the jurors’ memory controls. He did not here, and there’s no way explain the disparate treatment – yes – of allowing an alleged custom: “[T]hat’s what lawyers do” extended to defense counsel, but disallowing plaintiff’s counsel the same custom in response.
We never argued that Zarda committed suicide because of his termination, but history shows that sexual minorities choose suicide when subjected to public shame. Here, defendants fired, by their admission, a good employee; he was also an unflappable, openly gay man, and was fired, at least partly, for identifying who he was, his termination backed up with the self-indicting accusation that he improperly touched a woman he was supposed to touch. This horror is of the type that makes many lesbians and gay men internally broken, marginalized as disgusting. Helfand described the dread of Maynard’s branding him a “gay pervert” (JA.580), and how that stopped him doing what he loved, skydiving, for fear of a repeat accusation. (JA950-54). He moved to BASE jumping as an
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alternative, and it was undisputed that BASE jumping killed him. Helfand’s testimony was compelling, and aptly summarizes how gay people feel when they a community ostracizes them because of their difference, and how easy it is to impugn their way of life as grotesque.
We believe Judge Bianco would not reprimand defense counsel at any cost, and lacked insight into how the defense communicated bias during this trial. “[H]omonegative beliefs . . . [include] homosexual stereotypes, such as ‘Homosexuals fornicate all the time.’” Hill, Journal of Homosexuality at 103. The judge allowed this stereotype to come in, even though it had nothing to do with the termination. He not only by permitted the defense witnesses to testify without fair notice, but reinforced their testimony. Consider this: When Shaw testified, he related that the deceased plaintiff would talk about “[p]artying and sleeping with people.” When we objected, the court overruled us, adding to the witness, “You don’t have to go into every detail.” (JA1578). That limitation suggested there were details – details too shocking for to hear. It also proves that had we deposed Shaw, we could have probed, and potential revealed him a liar, conveniently out of memory, or that such conversation was common dropzone fodder for everyone.
But with plaintiff unavailable to refute Shaw, and despite that talking to coworkers about his nightly conquests was not the reason for termination, the defense was able to characterize plaintiff not only as oversexed, but insensitive to women
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and children. Hill notes that the bias that gays will corrupt minors shows as statistically significant in criminal verdicts. Journal of Homosexuality at 95. Significantly, Shaw threw “a young baby” (JA1579). In the Proposition 8 trial, historian George Chauncey testified that discrimination against gays emphasizes “the importance of protecting children. . . despite the lack of any evidence showing that gays and lesbians pose a danger to children.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 937 (N.D. Cal. 2010), vacated on other grounds, 133 S.Ct. 2652 (2013). Just as in Prop. 8, the defense had to trot out a child – whom Shaw admitted couldn’t understand the alleged conversation. (JA1579). If this was true, why bring it forth? The answer lies in homophobia, still alive here in the Second Circuit.
Although plaintiff’s actual nightly endeavors were never detailed – hush, hush – the defense depicted plaintiff as a homo-monster, asking, with no basis in fact, questions about his use of the phrase “fags first” (JA1090) (a variation on “ladies first,” invoking the anti-female stereotype) to the “creepy,” face and “sensual” voice, to switching women for men. It was left to imagination what he did with the men. As the Ninth Circuit held in SmithKline Beecham Corp. v. Abbott Labs., “Empirical research. . . show[s] that discriminatory attitudes toward gays and lesbians persist and play a significant role in courtroom dynamics.” 740 F.3d 471, 486 (9th Cir. 2014). This trial proves it. Zabell relied on these dynamics
63

in deriding plaintiff’s evidence of pretext in his summation as proof of his being different and wrong. Noting there is a difference between a man telling a woman that he “has a wife and children and wants to go home to them” versus plaintiff’s statement that “I am gay and have the ex-husband to prove it,” Zabell could not explain the difference other than to say, “I think that there is a difference, and I . . . know that you guys are smart enough to pick up on that.” (JA1721-72) (emphasis added). Indeed, prejudice is usually unstated. The judge did nothing to call this out, nor justify the objectively disparate treatment between Zabell’s right to call a witness “odd,” yet disallow plaintiff’s attempt to rehabilitate that witness as wise, (JA1746), when the record supported it. Our best guess is that the affable, wellrespected judge didn’t appreciate his mindset: Biases creep upon us, unbeknownst to the person reinforcing them. As Judge Posner said, “One must not exaggerate the impact of a judge’s career and demographic characteristics on [his] decisions. Most judges are conscious. . . of [biases] and try with considerable success to overcome them.” Tyson v. Trigg, 50 F.3d.436, 439 (7th Cir.1995). We agree, but we do not believe Judge Bianco overcame his unconscious biases. He is extremely analytical and of perfect temperament. But we do not believe he gave us a fair trial. Though many individual rulings were fair, in the totality, he rendered the trial unfair, requiring reversal.
64

CONCLUSION Appellant asks that the Court vacate the judgment and remand for further proceedings. Dated: New York, New York March 19, 2016
65

CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C)

Gregory Antollino, an attorney admitted to this Circuit and attorney for plaintiff,

hereby certifies pursuant to Federal Rule of Procedure 32(a)(7)(C) that this brief

contains 14,963 words as computed by the word processing program (Microsoft Word) used to prepare the corrected brief, and permission was granted to file an

oversized brief not exceeding 15,000 words. The font is Times New Roman, a

proportional font, at 14 point. The brief was scanned for viruses using MacKeeper.

Dated:

New York, New York March 19, 2016

66

 
 Case 15-3775, Document 164-1, 06/28/2016, 1804133, Page1 of 49
15-3775
UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT
Melissa Zarda, co-independent executors of the estate of Donald Zarda, 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, Ray Maynard,
Defendants - Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
_____________________________________________________________________________
APPELLEES’ BRIEF _____________________________________________________________________________
SAUL D. ZABELL, ESQ. ATTORNEY FOR DEFENDANTS-APPELLEES
1 CORPORATE DRIVE, SUITE 103 BOHEMIA, NY 11716 (631) 589-7242
SZABELL@LABORLAWSNY.COM
June 15, 2016

Case 15-3775, Document 164-1, 06/28/2016, 1804133, Page2 of 49

RULE 26.1 STATEMENT

Pursuant Rule 26.1 of the Federal Rules of Appellate Procedure and to enable Judges of this Court to evaluate possible disqualification or recusal, the undersigned counsel for Defendants states as follows:

Defendant Altitude Express, Inc., d/b/a Skydive Long Island, is a domestic business corporation organized and existing under the laws of the State of New York.

Defendant Altitude Express, Inc., d/b/a Skydive Long Island is not a governmental entity, there are no parent corporations, nor does any publicly held corporation hold 10% of its stock.

Z

Digitally signed by Saul D. Zabell

abell & ssociates, P.C.

Date: 2016.06.28 12:29:11

By: ________________________________ EMPLOYMENTCOUNSELING,LITIGATION,LABORANDBENEFITSLAW www.laborlawsny.com

-04'00'

Saul D. Zabell (SZ 2738)

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Case 15-3775, Document 164-1, 06/28/2016, 1804133, Page3 of 49
TABLE OF CONTENTS i. TABLE OF AUTHORITIES............................................................iii I. JURISDICTIONAL STATEMENT .................................................. 1 II. STATEMENT OF ISSUES .............................................................. 1 III. STATEMENT OF THE CASE..................................................... 3 IV. STATEMENT OF FACTS RELEVANT TO THE APPEAL ...... 4
Summary Judgement ................................................................... 5 Joint Pre-Trial Order ................................................................... 5 Trial .............................................................................................. 7 Relevant Workplace History ...................................................... 11 2010 Customer Complaint ......................................................... 12 V. SUMMARY OF ARGUMENT ........................................................ 16 A. Sexual Orientation Discrimination is not a Prohibited Basis for Actionable Discrimination under Title VII .............................. 16 B. Judicial Deference to Administrative Decisions is not Mandatory ................................................................................ 17 1. Skidmore Deference ............................................................. 17 2. Chevron Deference................................................................ 18 C. The Second Circuit Decision in Simonton Remains Undisturbed ................................................................................................... 19 D. The EEOC has not Displaced Simonton .................................. 21
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E. Any Putative Claim for Sexual Orientation Discrimination Arising Under Title VII Fails as a Matter of Law ................... 26 1. Disparate Treatment ............................................................ 26 2. There Exists No Inference of Impermissible Discrimination....................................................................... 28 3. Appellees had a Legitimate, Non-Discriminatory Reason for Zarda’s Discharge.................................................................. 31
F. Appellees did not Engage in a Trial by “Ambush” .................. 33 1. Wayne Burrell ...................................................................... 34 2. Curt Kellinger ...................................................................... 35 3. Duncan Shaw ....................................................................... 36
VI. CONCLUSION............................................................................. 41
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TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ....................................................... 17-19, 24, 25
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ........................................................... 27, 28, 31
Rovario v. United States, 353 U.S. 53 (1957) ......................................................................... 38
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...................................................... 17, 18, 21, 24
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 U.S. 2517 (2013) ...................................................................... 21
FEDERAL COURT CASES
United States Court of Appeals
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)................................................ 20, 26, 27
DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986)............................................................ 20
Grady v. Affiliated Cent., Inc., 130 F.3d 553 (2d Cir.1997) ....................................................... 28-31
Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) ........................................................... 28
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)............................................. 19-21, 23, 26
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Sweeney v. Research Foundation of the State Univ. of N.Y., 711 F.2d 1179 (2d Cir. 1983) ......................................................... 28
Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) ............................................................. 21
Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016) ........................................................... 21
United States v. Richard Baum and Joseph Scapoli, 482 F.2d 1325 (2nd Cir. 1973) ................................................. 37, 38
United States ex rel. Wilkins, 326 F.2d 135 (2d Cir. 1964) ........................................................... 38
US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (2d Cir. 1969) ............................................................. 37
Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000) ............................................................. 26
Federal District Court
Burrows v. Coll. of Cent. Florida, 14–CV–197, 2015 WL 5257135 (M.D.Fla. Sept. 9, 2015) ....... 22, 23
Chin v. ABN-AMRO N. Am., Inc., 463 F. Supp. 2d 294 (E.D.N.Y. 2006) ............................................. 28
Christiansen v. Omnicom Grp., Inc., ––– F.Supp.3d ––––, 15-CV-3440 (KPF), 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016) ............................................................ 22, 23
Cooper v. Morgenthau, 2001 WL 868003 (S.D.N.Y. July 31, 2001) .............................. 29-31
Crump v. T Coombs & Associates, LLC, 13-CV-707, 2015 WL 5601885 (E.D.Va. Sept. 22, 2015) ............... 21
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Dew v. Edmunds, 15–CV–00149, 2015 WL 5886184 (D.Idaho Oct. 8, 2015) ............. 22
Hayes v. Cablevision Sys. New York City Corp., 2012 WL 1106850 (E.D.N.Y. Mar. 31, 2012) ................................. 31
Hinton v. Virginia Union University, ––– F. Supp.3d ––––, 15-CV-569, 2016 WL 2621967 (E.D. Va. May 5, 2016) ................................................................... 25
Isaacs v. Felder Servs., LLC, 13-CV-693, 2015 WL 6560655 (M.D.Ala. Oct. 29, 2015) .......... 22-25
Iverson v. Verizon Communications, 2009 WL 3334796 (S.D.N.Y. Oct. 13, 2009) ................................... 31
LaVigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp.2d 504 (N.D.N.Y. 2010) ............................................. 40
Lopez v. City of New York, 11-CV-2607 (CBA) (RER), 2012 WL 2250713 (E.D.N.Y. June 15, 2012) ............................................................... 39
Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015) ............................................... 25
Videckis v. Pepperdine Univ., 100 F.Supp.3d 927, 15-CV-00298, 2015 WL 8916764 (C.D.Cal. Dec. 15, 2015) ........................................................... 22, 23
Zuffante v. Elderplan, Inc., 2004 WL 744858 (S.D.N.Y. Mar. 31, 2004).................................... 29
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STATE COURT CASES Forrest v. Jewish Guild for the Blind,
819 N.E.2d 998, 3,786 N.Y.S.2d 382, 3 N.Y.3d 295 (2004)............ 27 Stephenson v. Hotel Employees & Rest. Employees Union Local 100 of the AFL-CIO,
6 N.Y.3d 265 (2006) ........................................................................ 26 STATUTES & REGULATIONS New York State Human Rights Law,
N.Y. Exec. Law § 296, et seq. ("NYSHRL”) ............................... 4, 26 Title VII of the Civil Rights Act
42 U.S.C. § 2000e, et seq. (“Title VII”)................................... passim ADMINISTRATIVE DECISIONS Baldwin v. Foxx,
EEOC 0120133080, 2015 WL 4397641 (July 16, 2015)........... 21, 22 LEGISLATIVE MINUTES Employment Non-Discrimination Act of 1996,
S. 2056, 104th Cong. (1996) ........................................................... 20 Employment Non-Discrimination Act of 1995,
H.R. 1863, 104th Cong. (1995) ....................................................... 20 Employment Non-Discrimination Act of 1994,
H.R. 4636, 103d Cong. (1994)......................................................... 20
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Case 15-3775, Document 164-1, 06/28/2016, 1804133, Page9 of 49
I. JURISDICTIONAL STATEMENT Appellants, Melissa Zarda and William Allen Moore, Jr. as CoIndependent Executors of the Estate of Donald Zarda, (“Appellants”) appeal from the United States District Court for the Eastern District of New York on behalf of Donald Zarda, who is deceased (“Zarda”, or “Appellant”). Altitude Express d/b/a Skydive Long Island and Raymond Maynard (“Appellees”, “SDLI” or “Maynard”) do not contest or otherwise dispute the basis for the District Court’s jurisdiction or that of the Court of Appeals.
II. STATEMENT OF ISSUES Appellants’ argue this Court should: 1. Vacate lower court’s decision granting Summary Judgement on
Zarda’s claim for sexual orientation discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. (“Title VII”) and the District Court’s subsequent denial of Zarda’s motion to for reconsideration where no such claim exists under federal law.
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2. Determine that the District Court’s decision to permit the filing of a June 20, 2014 Pre-trial Order, approximately sixteen (16) months before trial, constituted reversible error based upon the inclusion of fifty-seven (57) co-workers. Although, only three (3) were called as witnesses, each individual as well as the scope of their knowledge was disclosed during discovery and discussed by Donald Zarda himself.
3. Determine that the District Court’s decision: a. Allowing evidence of Zarda’s first of three separate terms of employment and termination therefrom constitutes reversible error; b. Allowing evidence of Zarda’s belief that his Workers’ Compensation claim was a possible basis for his termination was reversible error; c. Precluding Melissa Zarda and William Moore from testifying that Zarda went on a gay cruise because he lived in an airport shack, and that he touched his teeth was reversible error;
2

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d. Allowing of any evidence critical of Zarda’s workplace behavior was reversible error even though it formed the basis of his termination for legitimate business reasons; and
e. Allowing the term “odd” to be used to characterize the relationship between Zarda and his expert witness, whom he met, for the first time, as a patient in an emergency room.
III. STATEMENT OF THE CASE Appellants’ arguments aside, this is a straightforward dispute based on discrimination claims arising in the workplace. The central issues at hand are whether the Appellant, Donald Zarda, was in fact subject to impermissible discrimination and whether the basis for the alleged discrimination is protected under Title VII of the Civil Rights Act. The issue of sexual orientation discrimination falling outside the scope of Title VII has previously been addressed by Congress and subsequently interpreted by this Circuit. All facts forming the basis of Zarda’s putative sexual orientation claim arising under Title VII have already been tried before a Jury of his peers within the context of the New York State Human Rights Law, NY EXEC. LAW §296, et seq. (“NYSHRL”). Upon the completion of a fair and proper trial, Zarda’s
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claims were ultimately determined to be unfounded. Here, should this Court determine that existing precedent has outlived both the logic and reason from which it was derived, Appellants’ arguments must still be rejected by the Court because Zarda had an opportunity to present his allegations of discrimination to a jury of his peers under the corresponding state statute. This Court has consistently applied the same legal standard to claims arising under the NYSHRL as it does to claims arising under Title VII. In light of this construct and Zarda’s inability to identify direct or circumstantial evidence supporting his position, his claims fail as a matter of law.
IV. STATEMENT OF FACTS RELEVANT TO THE APPEAL Zarda began this litigation by alleging in his Amended Complaint, violations of New York State Human Rights Law, Title VII and New York State Labor Law. (JA0025-JA0040) Among those causes of action, Zarda claimed he was discharged because of a homophobic customer. (JA0025) Specifically, Zarda claimed that he had said to a customer that “You don’t have to worry about us being so close because I’m gay.” (JA0029) Zarda alleged that he was terminated for “mentioning the fact that he was gay to a passenger” and that he had touched a passenger
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inappropriately. (JA0031-JA0032) At the time the Amended Complaint was filed, Zarda was unaware of the existence of a customer complaint. (JA0033) Zarda alleged in his Amended Complaint that he was fired from his position because his “behavior did not conform to sex stereotypes.” (JA0035) Summary Judgment
At summary judgment, Zarda’s “gender stereotype discrimination, hostile work environment, and overtime claims” were each dismissed. Zarda’s “sexual orientation discrimination claim” based upon his termination under New York State law, and minimum wage claim under New York State law were permitted. (JA0672) Zarda then moved for reconsideration of the dismissal of his gender stereotype discrimination and hostile work environment claims. (JA0021) By decision dated October 28, 2015, the District Court terminated Zarda’s application for reconsideration of the Summary Judgment Decision. (SA024)1
1 In addition to the Joint Appendix and Appellants’ “Special Appendix”, Appellees provide supplemental documentary evidence in their “Supplemental Appendix”, references to which are (SA____).
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Joint Pre-Trial Order Zarda raises issues regarding the disclosure of fifty-seven (57)
names contained within Appellees’ witness list disclosed prior to the filing of the Pre-Trial Order. Zarda’s June 5, 2014, letter motion first raised the issue of his not being aware of the names contained within Appellees’ witness list and portion of the parties’ Joint Pre-Trial Order. (JA0016, JA00682, JA00683) Zarda’s June 5, 2014 letter motion was terminated on June 10, 2014 and Appellees were directed to include “information about the proposed defense witnesses” and that “plaintiff submit a letter to the Court by August 5, 2014, detailing any disputed objections to the designations.” (See June 10, 2014 Order) (JA0017) On June 20, 2014, the parties submitted a Joint Pre-trial Order (see docket number 169 on (JA0017, JA0690-JA0704) which included the following language regarding the witnesses identified:
Defendants anticipate that the following witnesses will testify in person (witnesses 1-6 were deposition witnesses; witness 7 is a member of Rainbow Skydivers identified in Defendants’ Rule 26 Disclosure Statement; witnesses 8-17 and 20-57 were employees from 2009-2010; and witnesses 18-19 were employees in 2001). (JA0693) Importantly, Zarda failed to file “a letter to the Court by August 5, 2014, detailing any disputed objections to the designations”. Only after
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the October 14, 2015 opening of trial, more than 14 months after being directed to do so, on October 16, 2015, Zarda filed a “Motion for Sanctions in precluding three or at least one for failure to adequately identify witnesses before trial.” (JA0022, JA0731-JA0740) Although within his application, Zarda acknowledged being provided with the addresses for Shaw and Burrell during discovery, opposing counsel claimed to “have no idea who Kellinger is”. This occurred despite Kellinger being identified in Zarda’s document production, written Responses to Defendants’ First Set of Interrogatories, the deposition of Winstock five (5) times (JA0395, JA0406, JA0417, JA0418) (SA008) and Zarda’s own deposition nine (9) separate times. (JA0108, JA0110, JA0111, JA0113, JA0159, JA0162) Trial
At trial, Appellants called Ira Helfand to testify as a fact witness. (JA0940) Mr. Helfand testified that he met Zarda in an emergency room in 1998 or 1999 as his treating physician and that they stayed in touch by phone for a few months. (JA0941) He further testified that despite an interruption in their conversations that lasted for several years, he
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visited Zarda in 2007 or 2008 for dinner and “started being in touch
again by telephone and talked from time to time.” (JA0942)
Appellants then called Lauren Callanan (JA0963) who testified
that she worked at Skydive Long Island from 2005 through 2011
(JA0964). In response to questions from Appellants’ counsel, the
following exchange occurred:
Q. When you go up in the sky in the plane, how would you describe the atmosphere before you are about to jump with the parachute?
A. Every single jump is different, so every experience is different.
Q. Would you characterize some as goofy? A. At times. Q. Would you characterize some as childlike? A. Sometimes. Q. Would you characterize some as boring? A. Sure Q. Would you characterize some as loose sexually? A. Not necessarily, but I think to an extreme maybe. (JA0968)
Ms. Callanan, on direct examination from Appellants’ counsel
indicated she received a complaint about Zarda. Specifically, “that the
customers were very unhappy with the service and felt that the
instructor made inappropriate comments.” (JA0976, JA0977) She
further testified that the complainant relayed that the “skydive was
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ruined and her first experience was not what she wished it would have been because of her instructor.” (JA0978)
Appellants also called Mr. Winstock and on direct examination, he testified that he had learned that a customer had made a complaint about Zarda. (JA1071, JA1074) He further testified that he had advised tandem jump passengers that he was married and had children. (JA1075) This was done for purposes calming them down and “giving them a little bit of security knowing you have a reason to make this work.” (JA1076) On cross examination, Winstock testified that Zarda was introduced to him as “Gay Don” prior to his employment with Appellees (JA1081 and JA1082) and that he introduced himself as “Gay Don”. (JA1082) Winstock also testified that there is no reason for an extended touching of a tandem student’s hips. (JA1082 & 1083) Winstock testified that the complaint against Zarda came from a husband “and it had to do with an inappropriate touching of the passenger and possible comments.” (JA1084) He further testified that Zarda explained to him that he “preferred to actually take male passengers as opposed to female passengers.” (JA1087) Winstock
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testified that he was Zarda’s supervisor and that Zarda never made any complaints to him about the workplace. (JA1088)
Zarda testified through his deposition testimony which was read into the evidence. Zarda filed an EEOC charge indicating that “I’m not making this charge based on my sexual orientation.” (SA002-SA003) Zarda testified that Winstock was his Supervisor and that he felt he could bring any of his problems to Winstock’s attention. (JA1163, JA1273, JA1274) With regard to his suspension and ultimate termination, Zarda testified that he was asked “a lot of questions” about the tandem “jump with Miss Rosanna” and that he did not remember a specific jump at that time to which he was referring. (JA1164-1165, JA1330, JA1331) Zarda acknowledged that Maynard, the owner of Skydive Long Island, was “investigating what I knew about” the complaint. (JA1166) Zarda acknowledged that his colleagues referred to him as “Gay Don” and that he “wasn’t offended by that.” And that he was treated “like anybody else.” (JA1167)
Further, Zarda testified that his outward appearance lead people to believe that he was heterosexual and that he frequently was
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mistaken for being straight and that such a mistake did not offend him. (JA1276-JA1277) Relevant Workplace History
Zarda opined about his 2001 termination from SkyDive Long Island, “From the best I can recall, because Ray didn’t discuss it with me, it had something to do with a customer being unhappy about not being able to do flips out of the airplane, or something that they wanted me to do out of the aircraft.” (JA1169, JA1310, JA1325) Zarda testified that he was rehired in 2009, and that Appellees rehired him with full knowledge of his sexuality and that he had a positive working relationship with his colleagues. (JA1177) Zarda conceded he got along well with all of his colleagues in 2009. (JA1174) Zarda enjoyed working at Skydive Long Island until he broke his ankle in 2009, at which point, he stopped working on July 2, 2009. (JA1175)
In 2010, Zarda confirmed he did not have any negative interactions with any of his coworkers (JA1178) and none of his coworkers brought up his sexuality with the intent to hurt his feelings, or to be malicious. (JA1315) Zarda testified that Ray Maynard was taking things out on him because his Workers’ Compensation insurance went
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up drastically as a result of his claim for injury (JA1312) and that being upset about the Workers’ Compensation premium increasing and the complaints about were a possible basis for his termination. (JA1313, JA1314, JA1316, JA1325) 2010 Customer Complaint
Tellingly, Zarda acknowledged that Mr. Kengle had lodged a complaint against him because “He said I was getting familiar with his girlfriend” (JA1285, JA1293, JA1294, JA1329) and that he conveyed that complaint to Ray Maynard. (JA1286) Zarda admitted disclosing his sexual orientation to Orellana because he sensed his actions made her feel uncomfortable. (JA1287) Zarda conceded he did not know what Maynard’s motivation was for terminating him in 2010. (JA1299)
Rosanna Orellana, the female tandem jump student who complained about Zarda’s behavior, was called by Appellants to testify. She testified on direct examination that Zarda made a joke about her being strapped to another guy. “He made the joke. He said to my boyfriend, how do you feel that I’m strapped to your girlfriend or something along lines. (JA1222) Ms. Orellana testified that Zarda whispered in her ear in a sensual manner. (JA1232) On cross-
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examination, Orellana testified that the video introduced did not capture the entirety of the jump experience. (JA1245) She testified that Zarda made her feel uncomfortable by, “whispering in my ear, so close in a sensual way. And after that he kept, you know putting his chin on my shoulder, which I found to be like, inappropriate.” She compared what she experienced to what she observed of her boyfriend’s jump and testified that it made her “feel uncomfortable.” (JA1247) She also testified that Zarda put his hands on her legs and no other instructors behaved in such a manner. (JA1247-JA1248) Orellana testified that Zarda made her feel uncomfortable and that his behavior was inappropriate. (JA1249) Orellana testified that instead of discussing the geography of what they were hovering over under the parachute that Zarda “was talking about his personal life. I can’t remember the whole conversation, but something about a break up with his, you know, significant other and how upset he was because they had broken up. That’s - - that was the main conversation during that period of time. (JA1253) After the jump, Orellana discussed what transpired with her boyfriend who had also jumped and they compared their respective experiences. At which point, Orellana expressed disappointment in her
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jump experience. (JA1255-JA1256) On re-direct, Orellana testified that she expected Zarda “to do his job and talk about what he is supposed to talk about, which is the surrounding area.” I’m not really, you know, a therapist, so if he wanted to talk about his personal life and his personal problems in his life, he should find a more appropriate time to talk about it, not while we are free falling with my life in his hands.” (JA1262-JA1263)
David Kengle testified on direct examination that he complained to Maynard about Zarda’s behavior with his girlfriend Orellana. (JA1405-JA1406, JA1410) Kengle testified, “I don’t remember exactly the conversation that we had. I made a complaint based on what I felt was inappropriate and the story that my girlfriend Rosanna gave me at the time. Exactly what I told him, I don’t remember the details, but he did refer to his personal life, referenced his personal life in some capacity. I felt that added inappropriateness, and that was my complaint.” (JA1407) Kengle went on to explain that he complained about Zarda acting inappropriately in that he was flirtatious with Orellana, kept his hands on her hips, or thigh area throughout the jump, and was gesturing to his mouth. (JA1410-JA1412)
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On direct examination by Appellants’ counsel, Maynard testified that Zarda made him aware of his sexual orientation at the time of his first hiring in 2001. (JA1466). Maynard testified that he received a complaint about Zarda from Kengle. (JA1476) and that complaint included touching that made her feel uncomfortable (JA1478) and discussions between Zarda and Orellana that occurred during the fall from the plane. (JA1482, JA1543) Maynard testified that after he received the complaint, he started his investigation. (JA1544) As part of his investigation, Maynard asked Zarda questions about the jump which, upon reflection, he did not remember. He also testified that Zarda had a history of customer complaints and was spoken to twice before about these issues. (JA1482) After Maynard viewed the videotape of the jump, its content corroborated Kengle’s complaint. (JA1482, JA1545)
Wayne Burrell testified that he was employed at Skydive Long Island for twenty-four (24) years as an instructor, and that he had worked with Zarda. (JA1514) Burrell testified that he observed Zarda “being a little unprofessional, rude not talking to them, not being
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friendly” with female jumpers (JA1515 & JA1516) and that he had mentioned his observations to Maynard. (JA1516)
Duncan Shaw testified that he worked at Skydive Long Island for fifteen (15) years (JA1575) and that he worked with Zarda. (JA1576) He testified that Zarda introduced himself to others as, “Gay Don” (JA1577, JA1586) and frequently discussed his sexual orientation in front of coworkers and at times, went into detail about his relationships. (JA1577, JA1578-JA1580)
Curt Kellinger testified that he had worked at Skydive Long Island since 1992, up until a couple of years before his 2015 testimony. (JA1626) Kellinger knew Zarda and was instrumental in his hire at Skydive. (JA1627-JA1628) Kellinger testified that Zarda disclosed his sexual orientation to him at their first meeting. (JA1628, JA1629)
V. SUMMARY OF ARGUMENT
A. Sexual Orientation Discrimination is not a Prohibited Basis for Actionable Discrimination under Title VII. While we offer no commentary on whether justice, equity, or
morality should dictate otherwise, binding Second Circuit precedent confirms the Trial Judge properly refused to credit, or acknowledge any cause of action for sexual orientation discrimination arising under Title
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VII. Notwithstanding recent societal inertia and the resultant effect upon administrative agencies, at present, there exists no such relief under Title VII. Nothing contained within Appellants’ brief, or for that matter, any of the corresponding amicus briefs is sufficient to effectuate such change. B. Judicial Deference to Administrative Decisions is not Mandatory
Appellants, not surprisingly, place great weight upon what they believe to be this Court’s obligation to defer to the decisions of administrative agencies. However, in actuality, counsel’s reliance upon the two seminal Supreme Court cases governing this practice is misplaced when, like here, Congressional intent is clear and unambiguous. Neither the Skidmore, nor the Chevron decision permits this Court to find in the law, protection for sexual orientation discrimination at a federal level, when Congressional intent indicates otherwise.
1. Skidmore Deference This was an FLSA case involving unpaid overtime compensation. The Supreme Court held that “the rulings, interpretations and opinions of the Administrator under this Act” are not controlling, but they
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“constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134 (1944).
The Court will evaluate an agency’s decision in a case based on: 1. the thoroughness evident in its consideration; 2. the validity of its reasoning; 3. its consistency with earlier and later pronouncements; and 4. all those factors which give it power to persuade, if lacking
power to control. Id. This is a less deferential standard compared to that found in Chevron. 2. Chevron Deference This case involved the construction of the term “stationary source” in an EPA regulation. The Supreme Court articulated a two-step test stating: “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute … Rather, if the statute is silent or
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ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (emphasis added).
Therefore, if Congress has already made a determination on an issue, the Court will defer to the intent of Congress. However, in a situation where Congress has not spoken on an issue, the Court should not attempt to construe the statute. Instead the Court should defer to the agency interpretation because the individuals in the agency are experts in that subject area and have more experience.
Here, as set forth below, Congressional intent is clear and Appellants’ reliance upon Chevron in practical effect, bolsters Appellees’ position. C. The Second Circuit Decision in Simonton Remains Undisturbed.
In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit unequivocally held that “Title VII does not proscribe discrimination because of sexual orientation.” Id. at 36. In reaching this conclusion, it cited “Congress’s rejection, on numerous occasions, of bills that would have extended Title VII’s protection to people based on their
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sexual preferences.” Id. at 35 (citing, e.g., Employment NonDiscrimination Act of 1996, S. 2056, 104th Cong. (1996); Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995); and the Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994)).
Based on the Second Circuit’s interpretation of Title VII in Simonton, Judge Bianco properly held that Appellants could not bring a claim under Title VII for discrimination based on sexual orientation. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217-18 (2d Cir. 2005) (“[T]o the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, [the plaintiff] cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.”).
The Simonton Court additionally looked to the other protected classifications under Title VII, reasoning that when read alongside the categories of race, color, religion, or nationality, “sex” could logically only refer to a class “delineated by gender, rather than sexual activity regardless of gender.” Id. (quoting DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306–07 (2d Cir. 1986)).
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D. The EEOC has not Displaced Simonton. Appellants argue, in sum and substance, that, even if Simonton is
settled law, the decision was displaced by a July, 2015 EEOC ruling that Title VII protects against discrimination based on sexual orientation. (relying on Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *1 (July 16, 2015)).
Appellants’ position is incorrect. Binding Second Circuit precedent does not support a wider expansion or interpretation of Baldwin, (a federal sector case); certainly not one which would move this Court away from the well-reasoned decision in Simonton.
EEOC interpretations of Title VII are entitled to Skidmore deference at most—that is, “deference to the extent [that they have] the power to persuade.” Vill. of Freeport v. Barrella, 814 F.3d 594, 619 (2d Cir. 2016) (relying on Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 53 (2d Cir. 2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2533 (2013)); Crump v. T Coombs & Associates, LLC, 13-CV-707, 2015 WL 5601885, at *24 n. 12 (E.D.Va. Sept. 22, 2015) (EEOC guidance given deference only to the extent that it has power to persuade).
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The district courts that have decided Title VII claims in the wake of Foxx have also given the EEOC’s interpretation of Title VII deference to the extent that the EEOC’s decision is persuasive. E.g., Christiansen v. Omnicom Grp., Inc., No. 15 CIV. 3440 (KPF), ––– F.Supp.3d ––––, –– ––, 2016 WL 951581, at *15 (S.D.N.Y. Mar. 9, 2016); Videckis v. Pepperdine Univ., No. CV-15-00298 (DDP) (JCX), ––– F.Supp.3d ––––, ––––, 2015 WL 8916764, at *8 (C.D.Cal. Dec. 15, 2015); Isaacs v. Felder Servs., LLC, 13-CV-0693 (MHT), –––F.Supp.3d ––––, –––– – ––––, 2015 WL 6560655, at *3–4 (M.D.Ala. Oct. 29, 2015); Dew v. Edmunds, No. 1:15–CV–00149 (CWD), 2015 WL 5886184, at *9 (D. Idaho Oct. 8, 2015); Burrows v. Coll. of Cent. Florida, 14–CV–197 (PRL), 2015 WL 5257135, at *2 (M.D.Fla. Sept. 9, 2015).
District courts have, however, split on whether to follow the EEOC or to follow the law of their regional circuits and their own districts. Christiansen and Burrows noted that the EEOC’s decision was entitled to deference to the extent that it was persuasive, but found that the decision could not displace the explicit holdings of their regional circuit court (in the case of Christiansen) or of their own district (in the case of Burrows). Christiansen, ––– F.Supp.3d at ––––, 2016 WL
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951581, at *15; Burrows, 2015 WL 5257135, at *2. As the Christiansen court noted: (1) the conduct before it was “reprehensible”; (2) “[t]he broader legal landscape has undergone significant changes” toward increased protection against sexual orientation discrimination in recent years; and (3) current rules recognizing Title VII discrimination claims based on sexual stereotyping but barring claims based on sexual orientation discrimination are incoherent. Christiansen, ––– F.Supp.3d at –––– – ––––, 2016 WL 951581, at *13–15. However, that court still concluded that that, under binding Second Circuit precedent, it could not adopt the EEOC’s position.
By contrast, Isaacs and Videckis adopted the EEOC’s position without addressing governing precedent from the regional circuit or their own district. Isaacs, ––– F.Supp.3d at –––– – ––––, 2015 WL 6560655, at *3–4; Videckis, ––– F.Supp.3d at ––––, 2015 WL 8916764, at *8.
Appellants latch onto the aforementioned decision in Isaacs, package it with the Baldwin holding, and present it to this Court as a cogent means by which to overturn Simonton. Logical syllogism aside, this strategy is patently ineffectual.
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Appellants’ counsel states that a court has already found Baldwin to be persuasive. (See Appellant’s Brief, 39) “These cases pre-date Baldwin and now apply with greater force. The EEOC is entitled to deference under Chevron, as the agency charged with enforcing Title VII, or insofar as it is able to persuade. Skidmore, 323 U.S. 140 (1944). Baldwin is persuasive, and at least one court has already so found. Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis 146663 at *8-9 (M.D. Ala. Oct 29, 2015).”
While the court in Isaacs, a case originating out of the Middle Distract of Alabama, discussed Baldwin, and in the course of doing so, stated it was “compelling”, the court ultimately held that “this claim fails for the same reason Isaacs’s other discrimination claims fail: He has offered no direct or circumstantial evidence to suggest that the decision of Felder Services to fire him was based on his sexual orientation.” Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis 146663 at *4 (M.D. Ala. Oct 29, 2015). As set forth in the proceeding section of this brief, Appellants’ putative claim of sexual orientation discrimination arising under Title VII is also fatally flawed for the same
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reasons. Plainly, the Isaacs decision does not alter the calculus of this dispute.
Although curiously absent from Appellants’ brief, we would be remiss not to point out that in one notable case, The Eastern District of New York adopted the EEOC’s position, notwithstanding explicit Second Circuit law to the contrary. See Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015) (surveying the federal and local sea-change in attitudes towards sexual orientation discrimination). However, the logic in Roberts has been disputed because a district court simply cannot change the law of the regional circuit. Hinton v. Virginia Union University, 2016 WL 2621967 at *5, (E.D.Va. May 5, 2016). This decision weighs on the present dispute to the extent Appellant asks this Court to change the law of the Second Circuit despite the existence of black letter statutory language to the contrary.
Appellants advance, in support of their arguments, decisions where courts have adopted the EEOC’s position. However, the scope and reach of Title VII properly lies within the exclusive purview of the Legislative branch. Since Congressional intent is clearly articulated, the two (2) step analysis in Chevron is not applicable and the sound
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reasoning behind the Simonton decision remains the guiding principle by which this case is governed.
Absent amendment, Title VII, as written, does not encompass sexual orientation discrimination claims. The EEOC’s Baldwin decision is at best, persuasive authority; its application is inherently limited. Appellants cannot state a claim for discrimination under Title VII and the Trial Judge did not commit reversible error by failing to allow such a claim to proceed. E. Any Putative Claim for Sexual Orientation Discrimination Arising
Under Title VII Fails as a Matter of Law 1. Disparate Treatment While not presently actionable under Title VII, claims of sexual orientation discrimination are actionable under the New York State Human Rights Law. Stephenson v. Hotel Employees & Rest. Employees Union Local 100 of the AFL-CIO, 6 N.Y.3d 265, 271 (2006); Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir. 2005). Importantly, and for purposes of the pending appeal, courts analyze claims under the NYSHRL using the same standards that apply to federal civil rights statutes such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Weinstock v. Columbia
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Univ., 224 F.3d 33, 42 & n. 1 (2d Cir. 2000); see also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n. 3,786 N.Y.S.2d 382, 819 N.E.2d 998 (2004).
The question of whether such claims are viable is determined by the familiar McDonnell Douglas burden shifting analysis used for Title VII claims. Id.; Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir. 2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To meet this burden, Plaintiff must demonstrate that “(1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class.” Id. If the Plaintiff does so, “a presumption of discrimination arises and the burden shifts to the Defendant to proffer some legitimate, nondiscriminatory reason for the adverse decision or action.” Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). If the Defendant does so, “the presumption of discrimination created by the prima facie case drops out of the analysis, and the Defendant will be entitled to summary judgment unless the
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Plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” Id. (internal quotations and citations omitted). In analyzing the Defendant’s business decision, courts must refrain from second-guessing a business’s decision making process. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) see, e.g., Sweeney v. Research Foundation of the State Univ. of N.Y., 711 F.2d 1179, 1187 n. 11 (2d Cir. 1983).
2. There Exists No Inference of Impermissible Discrimination At trial, Appellants failed to meet their burden under the McDonnell Douglas analysis, because a jury of Zarda’s peers determined that he failed to establish that he was terminated under circumstances which give rise to an inference of impermissible discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Certain factors “strongly suggest that invidious discrimination [is] unlikely. For example, where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision to hire.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997); Chin v. ABN-AMRO N. Am., Inc., 463
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F. Supp. 2d 294, 304 (E.D.N.Y. 2006); Zuffante v. Elderplan, Inc., 2004 WL 744858, at *6 (S.D.N.Y. Mar. 31, 2004). Invidious discrimination is especially unlikely when the termination “occurred a short time after the hiring.” Id. at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) (“The ‘underlying rationale for the [same actor] inference is simple: it is suspect to claim that the same manager who hired a person in the protected class would suddenly develop an aversion to members of that class.’”).
Here, Maynard hired Zarda on three (3) separate occasions: 2001, 2009 and 2010. (JA0107, JA0108, JA0112, JA0113, JA0339, JA0342). Each time Maynard invited Zarda to work at SDLI, Maynard had full knowledge of his sexual orientation because Zarda was openly gay. (JA0107, JA0109, JA0113, JA0334, JA0397, JA0418). Maynard was aware of Zarda’s sexual orientation yet continued to bring him back to SDLI to work. Additionally, Maynard was the person who decided to fire Zarda. (JA0107, JA0108, JA0112, JA0113, JA0148, JA0339, JA0342, JA0371). Given that Maynard decided to hire Zarda, with full knowledge of his sexual orientation, and subsequently decided to fire him, there can be no inference of discrimination. Grady, 130 F.3d at
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560. It is illogical to suggest, as Appellants now do, that Maynard would re-hire Zarda, knowing his sexual orientation, if he had any aversion to homosexuals. See Cooper, 2001 WL 868003, at *6. Additionally, Zarda was terminated within two (2) years of his hire date - he was hired late in 2008 and terminated in June 2010. (JA0108, JA0109, JA0148, JA0371, JA0337). The short period between his hire date and his termination creates a strong inference that Zarda was not subjected to invidious discrimination. Grady, 130 F.3d at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) (holding the inference of no discriminatory animus due when plaintiff was hired and fired by the same person “should be accorded substantial weight where the time period between the hiring and firing is less than two years.”). Moreover, Zarda was suspended and terminated in the immediate wake of a customer complaint. (JA0102, JA0103, JA0346). Again, the close proximity between the complaint about Zarda’s conduct and his termination indicate that he was terminated based solely on his inability to satisfy a customer. The jury properly found that Zarda was not fired under circumstances giving rise to an inference of
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impermissible discrimination. Grady, 130 F.3d at 560; Cooper, 2001 WL 868003, at *6.
3. Appellees had a Legitimate, Non-Discriminatory Reason for Zarda’s Discharge.
Even if, assuming, arguendo, Zarda could somehow demonstrate that he was terminated under circumstances which give rise to an inference of discrimination, Appellees had a legitimate, nondiscriminatory reason for the termination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Zarda’s termination was a result of a customer complaint regarding his behavior. (JA0152, JA0136, JA0154, JA0150, JA0164).
A customer complaint is a legitimate business reason for termination. See Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) (holding plaintiff was terminated for legitimate business reasons because plaintiff had poor performance and received multiple customer complaints); Hayes v. Cablevision Sys. New York City Corp., 2012 WL 1106850, at *15 (E.D.N.Y. Mar. 31, 2012) (holding customer complaints and written reprimands were sufficient to show a legitimate business reason for plaintiff’s termination). SDLI is first and foremost a customer service
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business, in which the highest priority is customer safety and the second is ensuring an enjoyable experience. (JA0128, JA0129, JA0323). On June 18, 2010, Zarda was unable to provide a customer with an enjoyable experience. (JA0144, JA0476, JA0489). Instead, Kengle and Orellana were placed in an uncomfortable position because Zarda put his hands on Orellana’s hips, rested his chin on her shoulder, and in the course of doing so, disclosed intimate details of his personal life. (JA0476, JA0486, JA0489, JA0454, JA0464, JA0465). As a result, Orellana and Kengle had a dissatisfactory experience and called SDLI to lodge a complaint. (JA0345, JA0456, JA0457). This alone is the reason Zarda was terminated. (JA0103, JA0148, JA0152, JA0136, JA0154, JA0150, JA0164, JA0371). In terminating Zarda, Maynard made a business decision to eliminate an employee who failed to provide the customer with one of the core goals of skydiving – an enjoyable experience. This decision was based on SDLI’s desire to please its customer base, not Zarda’s sexual orientation. Zarda himself conceded that the customer complaint regarding his behavior was unrelated to his sexual orientation. (JA0183). Appellants cannot rebut this fact. In addition, Zarda was the only instructor Maynard had ever received
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complaints about in his twenty (20) years at SDLI, Maynard properly responded to the complaint with immediate and unbiased corrective action. (JA0317, JA0318, JA0375). Parenthetically, this was not the first incidence in which a customer complained about Zarda during a jump; he received a prior customer complaint in 2001. (JA0108, JA0147, JA0148, JA0165). In terminating Zarda, Maynard simply eliminated an employee who, on at least two (2) separate occasions, failed to provide satisfactory customer service. Therefore, Zarda was terminated for a legitimate, non-discriminatory reason and the jury properly dismissed his claim for sexual orientation discrimination. F. Appellees did not Engage in Trial by “Ambush”.
To the extent Appellants suggest the inclusion of a certain number of witnesses in the parties’ proposed Joint Pre-Trial Order, dated June 20, 2014, constitutes “trial by ambush,” such a theory is nullified by the objective, factual record. Appellants claim Appellees’ counsel was, for all intents and purposes, motivated by a nefarious agenda by including fifty-seven (57) potential witnesses in their portion of the proposed Joint Pre-Trial Order.
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First and foremost, there exists no threshold number of witnesses, the inclusion of which would presumptively violate any local or federal rule. Appellees respectfully maintain that in a case such as the one at bar, its actions were, at all times, eminently reasonable. Appellees’ proposed witnesses were each Zarda’s former co-workers during his three (3) separate tenures at SDLI. Since skydiving is weather dependent, jumpers are migratory by nature. (JA0027, JA0049, JA0081, JA0165) As demonstrated during the pre-trial process, jumper availability was difficult to manage. This fact necessitated the inclusion of each of Zarda’s former co-workers. (JA0682-JA0688)
Tellingly, while the Joint Pre-Trial Order was filed with the Court on June 20, 2014, and Jury Trial commenced on October 13, 2015, the names of the three (3) witnesses which form the basis of Appellees’ position were disclosed several years earlier. (SA008, SA021, SA022, SA023)
Specifically, the names of the following witnesses appeared in documents exchanged by the parties at the corresponding dates below:
1. Wayne Burrell: Zarda served his response to Appellees’ First Set of Interrogatories on April 7, 2011. Appellees’ second interrogatory
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required Zarda to identify “all individuals employed by Defendant who partook in purported banter or conversation with Defendant’s customers and/or clients as described in ¶18 of Plaintiff’s Complaint.” To which, Zarda responded by providing an extensive list of names, including a “Wayne Burrell.” Appellees’ request did not inquire about Wayne Burrell specifically. His name did not appear in the interrogatory. Instead, Zarda first identified Mr. Burrell as possessing information related to this action by providing his name in direct response to a legitimate discovery demand. Again, this discovery response was served several years before the ultimate trial. 2. Curt Kellinger: Appellants similarly claim a lack of knowledge about Mr. Kellinger. However, Appellants’ counsel produced a response to Appellees’ First Request for the Production of Documents on February 1, 2011 which included, amongst other items, documents referencing Curt Kellinger. Specifically, Zarda produced an e-mail chain reflecting a conversation between he and Curt Kellinger via Facebook. (SA022, SA023) On April 7, 2011, Zarda produced a response to Appellees’ First Set of
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Interrogatories, in which Curt Kellinger was identified as possessing information relevant to this matter. Additionally, Curt Kellinger’s name was referenced prominently during the depositions of Richard Winstock and Zarda. Specifically, Mr. Kellinger was referenced no fewer than five (5) separate times during Winstock’s deposition and no fewer than nine (9) separate times during Zarda’s deposition. (JA0395, JA0406, JA0417, JA0418, JA0108, JA0110, JA0111, JA0113, JA0159, JA0162) Tellingly, Richard Winstock was the first to introduce Curt Kellinger’s name in his deposition testimony, rather than counsel for Appellees. (JA0395) Similarly, Zarda was the first to introduce Mr. Kellinger, or “Curt,” in his own testimony without being prompted to do so by counsel. (JA0108) 3. Duncan Shaw: Appellants’ allegations regarding Duncan Shaw are wholly inaccurate as Mr. Shaw was referenced more frequently than any of the three (3) witnesses upon which opposing counsel relies in support of his argument. Zarda first introduced Mr. Shaw’s name in response to Appellees’ First Request for the Production of Documents on February 1, 2011.
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(SA021) Zarda, yet again, provided Duncan Shaw’s name in response to Appellees’ First Set of Interrogatories on April 7, 2011. In addition, Duncan Shaw was referenced in four (4) separate depositions. (JA0402, JA0320, JA0336, JA0348, JA0441) Tellingly, Zarda referenced Duncan Shaw during his deposition on no fewer than twenty (20) separate occasions. (JA0108, JA0110, JA0111, JA0161, JA0162, JA0166, JA0174, JA0175)
Despite the foregoing, Appellants insist they were somehow “ambushed at trial” by the inclusion of these witnesses and that such action constitutes reversible error. In support of his position, counsel relies upon the decisions in US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (1969) and US v. Richard Baum and Joseph Scapoli, 482 F.2d 1325, 1331 (2nd Cir., 1973). However, the relatively aged and highly contextualized cases upon which Appellants rely are insufficient to support any finding that Appellees, in any manner, “ambushed” Appellants.
Specifically, US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (2d Cir. 1969) is a criminal case involving two New York City detectives conspiring to traffic drugs. The trial took place in 1968 at which time
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there was a new “neutron activation” technique to demonstrate that the drugs all came from the same batch. The Defendants objected to the neutron activation evidence as well as the government expert who discussed the technique in his testimony. A new trial is granted so the defense has the opportunity to attempt the technique. This is distinguishable because the new trial was connected to the scientific process in question and not the witness.
Further, United States v. Richard Baum and Joseph Scapoli, 482 F.2d 1325, 1331 (2nd Cir. 1973) is a criminal case involving criminal possession of radios. The Defendants/Appellants claimed prejudice based on the evidence provided by the government’s final witness, Greenhalgh, to prove Baum’s knowledge that the radios were stolen. The Court found “no reason for non-disclosure was advanced by the government. Greenhalgh’s testimony was crucial to the prosecution; it was equally crucial to the defense. Cf. Rovario v. United States, 353 U.S. 53, 60 (1957); United States ex rel. Wilkins, 326 F.2d 135, 140 (2d Cir. 1964). The court held a new trial was required to afford Defendant Baum a fair opportunity to meet the critical and damaging proof of an offense not presented against him in the indictment. The government
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failed to disclose the identity of the witness but did not justify a reason for non-disclosure. The case has no practical application to the present dispute.
Appellees respectfully submit more recent decisions which center upon a party’s failure to disclose the identity of trial witnesses are far more relevant that those upon which Appellants rely.
For example, in Lopez v. City of New York, No. 11-CV-2607 (CBA) (RER), 2012 WL 2250713 (E.D.N.Y. June 15, 2012), Plaintiffs moved to preclude Defendants from offering at trial any witnesses not specifically disclosed to date. The Court granted the Order and the Defendants moved the Court to reconsider the motion. The Court stated, “[W]hat Rule 37 clearly prohibits, however, is for Defendants to knowingly fail to disclose percipient witnesses in violation of their obligations under Rule 26(a) and (e)(1), and then seek to have those witnesses testify at trial.” The goal of the Rules is “to avoid surprise or trial by ambush.” The Court also considers prejudice to Defendants. The Court held that there is no prejudice or harm to Defendants and upholding the previously granted Order. Here, as set forth above, Zarda himself either disclosed and/or testified as to the identity and relevance of each
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trial witness in question. In light of such facts, there can be no “ambush”.
Further, in LaVigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504, 511 (N.D.N.Y. 2010), Plaintiff sued her former employer after termination. The employee argued Defendant should be precluded from relying on her supervisor’s affidavit because Defendant violated Rule 26 and initially failed to identify him “as an individual likely to have discoverable information.” The Court pointed out that Plaintiff, in a situation like here, “had full awareness of [his] role and involvement in the events at issue here.”
Plainly, the frequency with which Messrs. Shaw, Kellinger and Burrell appeared during the discovery period, particularly since Appellant himself disclosed their names and identified them as possessing relevant information, nullifies any claim that Appellees attempted to conduct a “trial by ambush.” We respectfully submit this Court should disregard any argument to the contrary.
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VII. CONCLUSION

For all the foregoing reasons, Appellees respectfully request this

Court deny Appellants’ appeal in its entirety because 1) there does not

exist a cognizable claim for sexual orientation discrimination under

Title VII and 2) because there was no reversible error at trial.

Dated:

Bohemia, New York June 15, 2016

By:

ZABELL & ASSOCIATES, P.C. Counsel for Appellees

Z

Digitally signed by Saul D. Zabell

__________________________ abell& ssociates,P.C. EMPLOYMENT COUNSELING, LITIGATION, LABOR AND BENEFITS LAW www.laborlawsny.com

Date: 2016.06.28 12:29:32 -04'00'

Saul D. Zabell

One Corporate Drive, Suite 103

Bohemia, NY 11716

(631) 589-7242

(631) 563-7475

szabell@laborlawsny.com

41

Case 15-3775, Document 164-2, 06/28/2016, 1804133, Page1 of 1

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(s) Saul D. Zabell, Esq. Attorney for APPELLEES Dated: June 17, 2016

 
 15-3775

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT

MELISSA ZARDA AND WILLIAM ALLEN MOORE AS COINDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA,
Plaintiffs-Appellants,
— against —
ALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

APPELLANT’S REPLY BRIEF

GREGORY ANTOLLINO, ESQ. Attorney for Plaintiff-Appellant 725 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397

BERGSTEIN & ULLRICH, LLP, Stephen Bergstein, Of Counsel Attorney for Plaintiff-Appellant 12 Railroad Avenue Chester, New York 10918 (845) 469-1277
July 2016

TABLE OF CONTENTS
!! TABLE OF AUTHORITIES .......................................................................................................... ii

I. Simonton, it analysis and progeny have become antiquated. .................................................. 4

A. The suggestion that Simonton forever bars plaintiff’s Title VII argument is inconsistent with Baldwin, Windsor and Obergefell. ............................................................................. 4

B. Agency Deference under Baldwin and Skidmore................................................................ 7

C. Holcomb alone renders Simonton void because that sex and race are interpreted in the same manner under Title VII. ............................................................................................ 13

II:

Harmful Error ................................................................................................................. 15

III: Plaintiff’s performance was superlative ......................................................................... 17

IV: The Defense misunderstands the discrimination it invoked at trial and makes a mockery of discovery and fair pre-trial procedure. .................................................................................. 20

A. Worker’s Compensation................................................................................................. 20

B. Three witnesses hidden in a pile of fifty. ....................................................................... 20

C. Appeals to Prejudice....................................................................................................... 21

CONCLUSION............................................................................................................................. 22

CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) ............................................................. 23

i

TABLE OF AUTHORITIES
CASES Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (EEOC July 16, 2015) ................................ passim Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ......................................................... 8 Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)......................... passim Campaign for Southern Equality v. Miss. Dep’t of Hum. Servs., --- F. Supp. 3d ---, 2016 U.S.
Dist. LEXIS 43897 (S.D. Miss. Mar. 31, 2016).......................................................................... 9 Cassotto v. Donahoe, 600 Fed. Appx. 4 (2d Cir. Jan. 14, 2015) .................................................. 16 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ......................... 3 Dothard v. Rawlinson, 433 U.S. 321 (1977)................................................................................... 7 EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ........................................... 16 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).............................................................. 8, 15 Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008)............................................................... 13 Ferrante v. Am. Lung Ass'n, 90 N.Y.2d 623 (1997)..................................................................... 17 Fitzgerald v. Henderson, 251 F.3d 345 (2d Cir. 2001) ................................................................. 13 Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181 (2d Cir. 2006)................................................. 11 Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) ........................................................ passim Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis146663 (M.D. Ala. Oct 29, 2015)............... 10 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................. 6, 9, 15 Lewis v. City of Chicago, 560 U.S. 205 (2010) ............................................................................. 7 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). ......................................................... 7 Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009) ............................................ 17
ii

Long Island Care at Home, Ltd. v. Coke, 376 F.3d 118 (2d Cir. 2004) rev’d sub nom Coke v. Long Island Care at Home, Ltd, 546 U.S. 1147 (2006) adhered to on remand, id. at 462 F.3d 48 (2d Cir. 2006) rev’d, 551 U.S. 158 (2007). .......................................................................... 14
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .......................................................... 21 National Cable & Telecommunications Assn. v. Brand X Internet Svcs., 545 U.S. 967 (2005) . 13 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)....................................................................... passim Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1978) ......................................................... 11 Parr v. Woodmen of the World Life Ins.Co., 791 F.2d 888 (11th Cir. 1986) .............................. 11 People v. Missrie, 300 A.D.2d 35 (First Dept. 2002). .................................................................. 17 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................................... 12, 19 Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015).................................. 14 Simonton v. Runyon, 232 F.3d 33 (2d. Cir. 2000) ................................................................ passim Skidmore v. Swift & Co., 323 U.S. 134 (1944)............................................................ 8, 13, 14, 15 Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) ............................................................ 16 United States v. W.R. Grace & Co., 429 F.3d 1224 (9th Cir. 2005) ............................................ 13 United States v. Windsor, 133 S. Ct. 2675 (2013).............................................................. 4, 5, 6, 9 United States v. Windsor, 699 F.3d 169 (2d Cir.2012), aff’d, 133 S. Ct. 2675 (2013) .................. 9 University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013)................. 16 Winstead v. Lafayette Cty. Bd. of Cnty. Comm'r, 2016 U.S. Dist. LEXIS 80036 (N.D. Fla. June
20, 2016).................................................................................................................................. 2, 7 Wojchowski v. Daines, 498 F.3d 99 (2d. Cir 2007) ..................................................................... 15 Xu-Shen Zhou v. State Univ. of N.Y. Inst. of Tech., 592 F. App'x 41 (2d Cir. 2015) ................. 16
STATUTES
29 C.F.R. § 1604 ............................................................................................................................. 8
iii

29 C.F.R. § 1630, app. 356 ........................................................................................................... 11 42 U.S.C. § 12211(a) .................................................................................................................... 12 42 U.S.C. § 1981a ........................................................................................................................... 5 42 U.S.C. § 2000e-2...................................................................................................................... 13 42 U.S.C. § 2000e-4........................................................................................................................ 8 42 U.S.C. 2000e-16(c). ................................................................................................................. 13 Americans with Disabilities Act. 42 U.S.C. § 12101 et seq. ........................................................ 11 Employment Non-Discrimination Act and Equality Act (unenacted) .......................................... 12 Family and Medical Leave Act, 29 U.S.C.S. § 2601 et seq.......................................................... 11 Fed. Rule Evid. 104(a) .................................................................................................................. 18 New York City Human Rights Law.............................................................................................. 14 Title VII of the Civil Rights Act as amended ........................................................................ passim
OTHER AUTHORITIES
Amicus Brief, Lambda Legal Defense, Christiansen v, Omnicom, 16-648 ................................. 28 Amicus Brief, 128 Members of Congress, Christiansen v, Omnicom, 16-648 ................. 1-2, 3, 11 Kristin M. Bovalino, “How the Effeminate Male Can Maximize His Odds of Winning Title VII
Litigation,” 53 Syracuse L. Rev. 1117 (2003) .............................................................................3 William N. Eskridge, “Interpreting Legislative Inaction,” (1988) 87 Michigan Law Review 67
(1988) ........................................................................................................................................ 11 Christianity Today, April 2, 2016 ................................................................................................... 8 Daily News, Bowling Green, Kentucky, January 7, 1991. “102nd Congress: Same faces, same
problems,” ................................................................................................................................. 12 Gillian Thomas, Because of Sex, 2016 ....................................................................................... 6, 7
iv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
x---------------------------------------------------x ESTATE OF DONALD ZARDA, Plaintiff-Appellant, -against-
ALTITUDE EXPRESS & RAYMOND MAYNARD, Defendants-Appellees
x---------------------------------------------------x This case brings curious circumstances with questions of immeasurable importance. The defense asks the Court to brush them aside: after all, Simonton v. Runyon, 232 F.3d 33 (2d. Cir. 2000) is the law; after all, Plaintiff lost a trial under New York law with a higher standard of proof. However, not only was that trial was riddled with error, but, more vitally, we believe this Court will recognize the civil rights of gay people as potential victims of sex discrimination. We ask you to re-examine earlier jurisprudence to give these unconventional facts the attention they deserve. The lower courts scream for answers to this legal inconsistency: Sexual minorities are protected under the Constitution, but not the Civil Rights Act. To fail – as the defense has failed – to address this inconsistency is intellectually bashful, to put it mildly. The Constitution recognizes equity and fair access to the courts for people of all sexual orientations; a little catching up is required, but this Court need not recognize sexual orientation as a protected class merely a subset of sex. This is something average Americans don’t recognize - noted by amicus in a pending appeal. See Amicus Brief of 128 Members of Congress, June 27, 2016 p.11. The law may so recognize, but if only you agree. (The brief is available on ecf or at http://tinyurl.com/gtp2wpz, visited June 30, 2016.)
1

The Estate asks for a new trial to demonstrate to a properly instructed, uninflamed jury that a discriminatory termination – one that haunted Zarda for the remainder of his life – was a violation of his right to be free from sex discrimination. The district judge denied us the language, and thus the protections, of Title VII. We proceeded under a state statute affording fewer remedies, and requiring a higher standard of proof; the case was defended with surreptitious and blatant homonegativity. The Estate didn’t get what Don – and therefore the Estate – deserved. Anticipating this plea to the Circuit – and in the attempt to conserve resources – we offered to allow the jury to consider the federal question in an advisory manner subject to appeal. After the E.E.O.C’s holding in Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (EEOC July 16, 2015), we intended to bring this appeal. However, both the court and defense rejected this suggestion, SPA.3. See R., entry 203, p.2 and entry 214, p.13.
Heterosexual attraction is the “ultimate sex stereotype,” Winstead v. Lafayette Cty. Bd. of Cnty. Comm'r, 2016 U.S. Dist. LEXIS 80036, p*25 (N.D. Fla. June 20, 2016). The vilification of prejudice from a bygone era is part of what the defense used to sway the jury: In the Altitude Express workplace, anything goes - see, e.g., JA319, 633 (“pull your pork” and “get laid” at the office barbecue, and “GAYYYYYYY . . . stop being a vagina and take the cast offf now) – Nevertheless, Zarda was maligned for unmentionable “bedroom activities” from a new witness secretly buried in fifty. What happened at the underlying trial would have been unacceptable in any court vaguely accepting of gay rights. Despite the rhetoric of equality, discrimination exists; it achieves its objectives by marginalizing a minority by blatant, ignorant or surreptitious means; that it was used at a gay rights trial underscores the need to disavow the hands-off approach based on distinguishing sex from sexual orientation. Title VII, “in forbidding employers from discriminating against individuals because of their sex, . . . intended to strike at the entire
2

spectrum of disparate treatment . . . based on sex stereotypes.” City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707, n.13 (1978). Notwithstanding this language, most Circuits allow employers to discriminate against gay people, usually expressing aversion in so doing, but ultimately closing a door available to heterosexuals. Those who don’t identify as gay are examined for trickery.1 Let’s forget about the LGBT per se; let’s think of people who have suffered adverse action because of sex. Put another way, don’t pigeonhole the discrimination sexual minorities suffer into a category not listed specifically – like associational discrimination – into Title VII. Forget about whether men are feminine or women masculine; “[s]ame sex attraction is the ultimately sexual stereotype.” Winstead, 2016 U.S. Dist. LEXIS at p*25. Recognize that for a “musclehead” like Zarda JA.277-78 who happened to be gay and we untie the doctrinal knot under Simonton. See Amicus, Members of Congress at 30.
The Court must decide whether to remain conjoined Simonton or move to a nearly uniform, consistent direction of cases decided since. Simonton is inconsistent with protections afforded, for example, in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), where a white man was discriminated against based on his marriage to a black woman. Why would the sex of his spouse not also be discriminatory treatment as well? Simonton, realistically, has been abrogated already – this Court just needs to say so. The weak pillars on which it stands have crumbled, and the agency charged with interpreting Title VII agrees. Simonton, we contend, is elementally on the other side of Holcomb, Obergefell and Windsor. For these reasons, the Court
1 See Dawson v. Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) (deriding article “How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation,” counselling “gay plaintiffs bringing claims under Title VII [to] emphasize the-gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality”. (citing Kristin M. Bovalino, “How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation,” 53 Syracuse L. Rev. 1117, 1134 (2003)).
3

should reverse. Video and audio show no dispute that plaintiff’s status as a man attracted to men was a “motivating factor” in his termination – a phrase the jury in this trial never heard.
Minimally, the Estate is entitled to a trial with proper instructions and without a gesture toward the “oddness,” or inappropriate difference of sexual orientation. To paraphrase defense counsel in his closing argument, this Court is smart enough to see the blotches brought upon the memory of a good man whom people liked and who did his job as required, with a smile. JA.1691. His termination, caught up in the bias of an employer who espoused ignorant beliefs that being gay is an “escapade” requires no extended inquiry. Ostracism for being gay is ostracism because of sex. Only this Court – or the Justices, whose precedents are consistent with plaintiff’s position – can reverse the gerrymander and endorse the contention that Title VII protects discrimination based on sex no matter the plaintiff’s sexuality.

I.! Simonton, it analysis and progeny have become antiquated.
A.! The suggestion that Simonton forever bars plaintiff’s Title VII argument is inconsistent with Baldwin, Windsor and Obergefell.

His case examined under Title VII, Zarda – the non-movant at summary judgment – had

direct evidence of discrimination: the audiotape of the termination alone plus the happy

customers on the visuals who complained – demonstrate that Maynard was resistant to “gayness” to the extent his customers knew a gay man worked for him.2 The customers at issue, by any

reasonable measure, had a fantastic ride, and this charade of “bad customer service” is a pretext

for punishment for mentioning same-sex attraction. Even if the defense would have fired him for

not pointing out “geography,” Def br. at 13, this would entitle the Estate to vindication, plus

2

This dispenses with the notion that a man who knowingly hired a gay man might fire him

later. Maynard was uneasy knowing Don was gay. Plaintiff denied coming out in 2001, JA52 ¶

17, but Maynard knew of Don’s sexuality in 2010. It was a third party’s knowledge that bothered

Maynard – the customer’s veto – to make it such that “it just wasn’t working” for Maynard to

have Zarda working for him. JA.356; Electronic Appendix Vol I.

4

costs and attorneys’ fees. 42 U.S.C. § 1981a. Our team has been fighting for six years for a finding that being gay is not an “escapade,” and that identification as gay is not only legal, but in some circumstances, perfectly sensible. Plaintiff is also entitled to de novo review of the Title VII ruling at a lower burden of proof – that is, if he is given access to that law.3 Defendants’ response simply re-invokes Simonton, suggesting not one reason why the Court should reaffirm.
The defense “offers no commentary on whether justice, equity, or morality should dictate” overruling Simonton. Def. Br. at 16. That’s dreary, but go with that thought for a moment: Don’t even think about justice, equity or morality, even though such intangibles happen to be things that Courts are empaneled to consider. See, e.g., Lawrence, 563 U.S. at 562 (“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”) We’re not begging for liberty: we simply ask that the Court follow the the postSimonton case law, recognize it as stale, and not gerrymander members of any sexual-orientation out of Title VII. Simply because one is discriminated against on the basis of sex and sexual orientation does not negate discrimination on the basis of one or the other. Protected classes overlap: think of race and color or ethnicity and national origin. Simonton, Judge Bianco held, was binding on him because the majority in that case disallowed recognizing sexual orientation as a sex stereotype. But that’s only because sex and sexual orientation overlap, and this Court has driven what Judge Katherine Polk Failla called an “artificial line” between the two. Christiansen v. Omnicom, 2016 U.S. Dist. LEXIS 29972 p*14 (S.D.N.Y. Mar. 9, 2016). Ultimately, what these (and other) district courts have done is irrelevant, even though other district courts have

3

Plaintiff does not advance on appeal that he was subject to a hostile environment. There

is evidence of this in the record, see JA.633, but we point it out to underscore the culture of the

workplace in the context of the pretext given for plaintiff’s termination, like the testimony about

the unmentionable “bedroom activities,” JA.1542 – veiled behaviors that morphed into “graphic

sexual experiences,” JA.1683, at summation.

5

accepted Baldwin as persuasive. This Court’s hands are not tied.4 Simonton was created by this Circuit. The Supreme Court never approved it, nor any similar reasoning, and any doubt as to whether it is still good law should be overcome by Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) and Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). Extending Equal Protection and marriage rights to people of the same sex under the Constitution creates a new world. This Court would abdicate its duty not to re-examine Simonton in this new world, and this was true as early as the decision in Holcomb.
Simonton is not binding on a single panel for reasons the defense doesn’t dispute. What Congress meant by sex has changed immeasurably over the years. The phrase “because of sex” was examined, case by case, in Gillian Thomas’ Because of Sex, 2016, as well as Amicus NYCLU, onto which Attorney Thomas signed. According to Thomas, history will never know why Representative Howard Smith introduced the “Sex” amendment into the Civil Rights Act. Some say he tried to derail the bill; another interpretation described him as a defender of women’s rights. Thomas at 1-2, 116. Consequently, “little legislative history . . . guide[s any court] in interpreting the Act's prohibition against discrimination based on “sex.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). Likely, no legislator fifty years ago was worried about sexual harassment – let alone when carried out by members of the same-sex; nor discrimination in pension benefits; and likely not even associational discrimination.
Nevertheless, courts have recognized that Title VII’s text reaches each of these forms of discrimination. See, e.g., Thomas, at 81-105; Dothard v. Rawlinson, 433 U.S. 321 (1977) (the struggle to limit to BFOQ); Manhart (sex stereotypes even when sex difference are statistically demonstrated); Meritor (sexual harassment). Prospective Amici NYCLU lays this out

4

Christiansen, 16-748, is also on appeal as of this writing, and various amici including the

E.E.O.C., support reversal.

6

beautifully, noting for years after its passage that 1960’s Mad Men-style “office flirtations” were dismissed as non-actionable, natural, interpersonal attractions. NYCLU Amicus Br. at 12. Eventually, these judicial interpretations were rejected, as should be Simonton, and in decisions post-dating Simonton, the Supreme Court has continued to reject narrow interpretations of Title VII’s scope that were not grounded in the statute’s text. See Lewis v. City of Chicago, 560 U.S. 205, 215, 217 (2010) (court’s “charge is to give effect to the law Congress enacted” even if “effect was unintended”).
B.! Agency Deference under Baldwin and Skidmore. Congress amended the Civil Rights Act in 1991, but courts have continued to recognize
ways plaintiffs may advance claims of discrimination. See, e.g., Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) (lowering the adverse action standard required for retaliation), and how defendants may protect themselves against these claims; Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (affirmative defense against sexual harassment). Discrimination exists and the manner in which intelligent people may carried it out with plausible deniability is a neverending story. The EEOC, thus, has the power to interpret the statute, 42 USCS § 2000e-4, and
per Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that agency is
entitled to deference when it adopts a reasonable interpretation. The phrase “sexual orientation” has not been added to the regulations, 29 C.F.R. § 1604, but Baldwin has interpreted “sex” to encompass sexual orientation. Thus, the E.E.O.C. is entitled to Chevron deference, abrogating Simonton. In the pending Christiansen, 16-748, the Court accepted an amicus brief from Lambda Legal that speaks entirely and solely to this issue, thoroughly and in sifting manner. See id. at 427 (available on ecf and at http://tinyurl.com/joftkrd (visited June 30, 2016).
7

Baldwin is entitled at least to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The defense admits this, yet it offers nothing suggesting that Baldwin is not persuasive in rejecting Simonton. Defendants simply fall back on Simonton per se, pushing aside an evolving society where the LGBT have gained successive rights over the years – including the right to be free from criminal strictures against sexual activity, Lawrence v. Texas, 539 U.S. 558 (2003); the right to marry, Obergefell; the the right to adopt in any state, Campaign for Southern Equality v. Miss. Dep’t of Hum. Servs., --- F. Supp. 3d ---, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss. Mar. 31, 2016)5; and the Constitutional entitlement to heightened scrutiny. United States v. Windsor, 699 F.3d 169 (2d Cir.2012), aff’d, 133 S. Ct. 2675 (2013). Lesbians and gay men had none of these rights when Simonton was decided; thus, it was difficult for courts to accept the argument that a male employee in a relationship with a man was similarly situated to – and thus be treated the same as – his female coworkers in relationships with men.6 As noted, a majority of Simonton years later decided Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) which we contend renders Simonton inconsistent, in and of itself – at least when one considers the availability of gay marriage, there is little of Simonton left. We live in a new society; gay people are still targets

5

The undersigned checked Mississippi ecf, and no appeal nor post-judgment practice was

taken, making Mississippi the last state to forbid gay parental adoption. See Christianity Today,

April 5, 2016, available as of July 7, 2016 at http://tinyurl.com/hahpwpl.

6

Dawson v. Bumble and Bumble, 398 F.3d 213 (2d.Cir. 2005) is more brash in its

language, but as Amicus-Movant Lambda Legal notes, Dawson’s language that Title VII does

not protect “homosexuals” as a class is dicta: Dawson affirmed summary judgment under

pendant laws because the plaintiff failed to demonstrate a triable issue of fact as to sexual

orientation discrimination. Id., 398 F.2d at 224-25. Thus, the discussion that sexual-orientation

discrimination is not sex stereotyping, nor not covered by Title VII, is not necessary to the

holding. See Lambda’s Brief at 7. Gays of a certain generation remember a time that people who

proudly identified as queer were used as cannon fodder in political and social discussions.

Perhaps that still has not changed, given the chatter about “bathroom laws,” but with Obergefell

and Baldwin coming a decade later, that time had not arrived by Dawson’s issuance in 2005.

8

of discrimination, but newer laws adapt to changing mores, Whether or not this Court sits as a Court of morality, Courts adjust to a changing society and its evolving principles.7
Indeed, the defense recognizes the same point in its argument pertaining to Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis146663 (M.D. Ala. Oct 29, 2015), Def. br. at 24-25. Isaacs is one of the few cases that could have recognized Baldwin’s persuasiveness (the Eleventh Circuit is one of the few that has not driven a line between sexual orientation and sex stereotypes) and it did, notwithstanding the result on summary judgment. Id. at *10-11. Baldwin’s decision rule was accepted – that’s the important thing in this emerging body of law (especially coming out of Alabama). By contrast, defendants still invoke Dawson, arguing that “Appellants could not bring a claim under Title VII for discrimination based on sexual orientation,” even though it is undeniable – and the defense doesn’t deny – that Dawson’s holding on this point was dicta. See note 6, supra. Moreover, the point is sex, not sexual orientation. Being gay has been punishable by death, and still is in some places. To fall back on Simonton is not to fall back on draconian punishments, but each advancement is incremental. To rely so easily, without analysis, on a case decided over a decade ago with so many legal developments since then would be akin to ignoring the rights the LGBT have acquired incrementally over history.
Defendant argues deference under Chevron is unavailable because legislative history speaks in favor of denying gay rights. Not so. A lack of Congressional action is always a weak, counter-intuitive manner in which to divine Congressional intent. The Civil Rights Act passed

7

Simonton relied on Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984) involving a

transgender woman. Id. at 1082. Ulane is inconsistent with this Court’s decision in Fowlkes v.

Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015), which remanded for consideration of the

timeliness of a transgender man’s claim. Applying Ulane to the facts of Fowlkes most likely

would have resulted in affirmance in the latter case, and shows that the Circuit is backing away

from Simonton.

9

over fifty years ago. Only a repeal of Title VII would disallow this Court from adopting the reasoning in Baldwin. Defendant’s argument that “Title VII lies within” the “purview of the Legislative branch” is true as to matters where the statute is clear, but ignores the interpretive functions of the judiciary. Is it not close to certain that few members of the 88th Congress envisioned a man asserting a claim of sex discrimination in an all-male workplace, or a white worker claiming discrimination after being rejected by a company that hired only whites? But see Oncale v. Sundowner Offshore Servs , 523 U.S. 75 (1978); Parr v. Woodmen of the World Life Ins.Co., 791 F.2d 888 (11th Cir. 1986) (prohibiting discrimination based on interracial marriage for a white man denied a job by a “whites only” company) (relied on in Holcomb, 521 F.3d at 129). Referring to the non-passage (not the legislative history, despite conclusory statements to the contrary) of the Employment Non-Discrimination Act, Def. Br. at 20, the defense insinuates that the legislative history of Title VII is “clear.”8 Please do not repeat the mistake of Simonton – recognized by Simonton itself as a poor method of statutory interpretation – in relying on legislative inaction to determine the outcome of this appeal. In an excellent recitation of legal history – as opposed to legal analysis per se – William Eskridge wrote in “Interpreting Legislative Inaction,” 87 Michigan Law Review 67 (1988) available at http://digitalcommons.law.yale.edu/fss_papers/3826 (seen June 30, 2016) that legislative inaction can be used for anything, without limit, and that the Supreme “Court has grappled with such arguments since the nineteenth century, oftentimes finding inaction arguments persuasive
8 ENDA was a proposed law that overlapped with Title VII and Baldwin, just like the Family and Medical Leave Act, 29 U.S.C.S. § 2601 et seq., overlaps with the Americans with Disabilities Act. 42 U.S.C. § 12101 et seq. See Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (citing 29 C.F.R. § 1630, app. 356 providing that a reasonable accommodation could include “unpaid leave for necessary treatment.”) It would be unseemly to look to the legislative history of the FMLA to interpret the ADA. As such, we ask that the Court work with the law before it, and defer to the agency entrusted with its interpretation.
10

but other times finding them unappealing.” Id. at 67. Amicus, 128 Members of Congress in Christiansen also make this point at 6-10. These debates intensified in the 1980’s with the appointment of Justice Scalia, the author of Oncale, 523 U.S. 75 (1998). That case is on point with our interpretation of Title VII, and the late Justice Scalia held for a unanimous Court that “statutory prohibitions often go beyond the principal evil [that Congress intended] to cover reasonably comparable evils[.]” Id. at 79.
It is well known, as Lambda points out, br. at 28, that same-sex attraction has not been regarded as illness since 1973. Yet in 1990, Congress engrafted a “gay exception” onto the ADA - 42 U.S.C. § 12211(a) - a statute within a larger Act that has not been cited in a single decision. A year later, an almost identical Congress,9 amended the Civil Rights Act, repealing part of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to favor plaintiffs, but not limiting sex-stereotyping in any way, nor amending Title VII to exclude sexual orientation discrimination, as it had a year earlier in the context of a less applicable statute. This reflects that a nearly identical Congress, highly cognizant that homosexuality might be raised to claim rights under broadly written nondiscrimination statutes, did not disallow it under a statute that would appear more applicable. In the end, to focus only on the failure to enact ENDA – or the Equality Act as it is now referred – is selective history. The bigger transgression is the failure to heed the unanimous Supreme Court mandate that courts should entertain any claim that “meets the statutory requirements” of “‘discrimination . . . because of . . . sex’ in the ‘terms’ or ‘conditions’ of employment,” and not just the types of claims with which “Congress was concerned with when it enacted Title VII.” Oncale., 523 U.S. at 79-80 (1998) (“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils[.]”)

9

Daily News, Bowling Green, Kentucky, January 7, 1991. “102nd Congress: Same faces,

same problems,” available at http://tinyurl.com/gph9ern.

11

Thus, contrary to Defendant’s contention, Congress has not spoken unambiguously about Title VII’s coverage of sexual orientation discrimination. Under Chevron v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) the decision in Baldwin – whose reasoning is sound
and unchallenged – warrants deference. Indeed, Defendant bolsters Baldwin’s applicability by noting that it is a “federal sector case.” Def. Br. at 28. That justifies Chevron deference, because Congress gave the EEOC the power, in federal sector cases, to issue regulations through rulemaking and orders through adjudications, as it did in Baldwin. 42 U.S.C. 2000e-16(c). Since Simonton is also a federal-sector case (brought under 42 U.S.C. 2000e-16 against Postmaster General Runyon), it is logically no longer good law, because of the confluence of Baldwin – also against the Postmaster – and because Simonton did not base its ruling on the unambiguous language of the statute, but on Congress’s inaction. See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). This Court has applied Simonton in subsequent cases in the private sector under 42 USC 2000e-2, in keeping with the recognition that the two discriminatory prohibitions (discrimination based on . . . sex” 42 USC § 2000e-16 and “discrimination because of such [an] individual’s . . . sex” 42 USC § 2000e-2) are identical. See Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001) (federal sector case citing 42 U.S.C. § 2000e-2, and its larger body of caselaw, for substantive analysis and 42 USC 2000e-16 for its procedural analysis).
But even if Chevron does not apply, agency interpretation is still entitled to “respect according to its persuasiveness.” Skidmore v. Swift & Co., 323 U.S. 134 (1944). The distinction between these various levels is never clear. See United States v. W.R. Grace & Co., 429 F.3d 1224, 1235 (9th Cir. 2005) (“[T]he continuum of agency deference has been fraught with ambiguity.”). The defense sets forth the correct standards in which to apply Skidmore, br. at 18,
12

but goes no further in analyzing why Skidmore would not apply here. Id. Although they are hard to distinguish, the two standards are not supposed to be precisely the same, W.R. Grace & Co., 429 F.3d at 1235, and defendant presents no analysis as to why Skidmore, at least, would not carry the day. Perhaps the only difference between the two standards is that Skidmore would apply to an agency without decision-making powers, like the Copyright Office. Encarnacion ex rel. George v. Astrue, 568 F.3d 72,78 (2d Cir. 2009).10 As it happens, and as far as we can tell, this Court has never applied Chevron deference without the backup of Skidmore. (Though, in Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme Court extended Chevron to the E.E.O.C. insofar as that agency may interpret its own regulations. 552 U.S. at 397.)
Both standards require reasonableness, and the defense offers not a soupçon of analysis as to why Baldwin would be unreasonable under Skidmore. Invoking an earlier interpretation of Title VII that the EEOC has rejected doesn’t amount to an analysis. As such, Baldwin supplants Simonton under either Chevron or Skidmore or both.
C.! Holcomb alone renders Simonton null because sex and race are interpreted in the same manner under Title VII.
The Supreme Court is serious about Chevron/Skidmore - a messy pool, though covered by Lambda better than we can. We shudder, however, to remind this Court that it was reversed twice on the Chevron issue in Long Island Care at Home, Ltd. v. Coke, 376 F.3d 118 (2d Cir. 2004), rev’d sub nom Coke v. Long Island Care at Home, Ltd, 546 U.S. 1147 (2006) adhered to on remand, id. at 462 F.3d 48 (2d Cir. 2006) rev’d, 551 U.S. 158 (2007). As Justice Breyer held in the final incarnation of Coke for for a unanimous Court, “an agency's interpretation of its own
10 Plaintiff did not in his opening brief cite to Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015) because, while persuasive, the citation to Baldwin is dicta; the case was brought under the New York City Human Rights Law. Id. at 368. Nevertheless, Judge Weinstein was correct historically and the decision is very well-reasoned.
13

regulations is controlling unless plainly erroneous or inconsistent with the regulations being interpreted” (citations, inner quotations omitted). Baldwin is not clearly erroneous. The defense, without explication, holds Simonton on high, but does not even quibble with the reasoning provided by the E.E.O.C. It is entitled to some deference as defendant admits, so what’s wrong with it? The defense doesn’t say. The Court can thus decide on Chevron and Skidmore alone.
The Court can avoid the Chevron/Skidmore analysis altogether, however. The simplest way to understand that Simonton is defunct would be to recognize that Holcomb renders it so. Title VII under Holcomb forbids employers from discriminating against their workers based on the race of the worker’s spouse. It is logical, therefore, that an employer may not discriminate against an employee based on the sex of that employee’s spouse. That is in part precisely what happened here, and defendants’ closing statement suggested the jury was “smart enough” to recognize the distinction – i.e., the delightfulness in hearing about a man’s marriage to a woman versus the repugnance in hearing about a man’s marriage to another man. JA.1721-22 (“I know that you guys are smart enough to pick up on that.”) We don’t believe this Court’s precedents allow such an inference of repugnance, nor should they. Holcomb alone annuls Simonton, we contend, and suggest it most certainly does with the addition of Lawrence, Windsor, and Obergefell - the last of which allowed same-sex marriage, something unthinkable in 2005. The Court should thus reject Simonton even if it does not defer to Baldwin, though Baldwin’s analysis is at least persuasive.
A three-judge panel may thus recognize the Holcomb inconsistency and dispense with Simonton. See plaintiff’s opening brief at Point I(c) (citing Wojchowski v. Daines, 498 F.3d 99 (2d. Cir 2007)). Nearly identical decisional standards apply to both race and sex-based claims
14

under Title VII, See Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998), thus with gay marriage constitutionally protected, Simonton should be recognized as null.
Intervening Supreme Court decisions under Title VII also undercut Simonton. As Lambda noted, “because Simonton and Dawson relied on non-textual considerations to carve an exception in Title VII, they have been abrogated by the Supreme Court’s repudiation” – again – of non-textual interpretations of Title VII. See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (court may not “add words to the law to produce what is thought to be a desirable result”); Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (preference for different rule “cannot justify departing from statutory text”).
II: Harmful Error The defense does not address our point that the instruction was inapplicable to Title VII,
thus rendering the trial under state law an inadequate substitute for one under Title VII. (Again we offered to be held to an advisory verdict.) The judge told the jury that an employment decision, if discriminatory, must be a “determining factor.” This requires a new trial under Title VII despite the loss under state law. University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2526 (2013) (noting “lessened causation standard”). This Court upheld the finding that the error warranted a new trial in Cassotto v. Donahoe, 600 Fed. Appx. 4 (2d Cir. 2015), and noted it with approval Xu-Shen Zhou v. State Univ. of N.Y. Inst. of Tech., 592 F. App'x 41 (2d Cir. 2015) (reversing for incorrect instruction). These cases from the summary docket stand for the principal, consistently applied, that errors in jury instructions, especially going to the standard of proof, are rarely harmless. Plaintiff explained how the jury could easily have been misled given the “determinative factor” or “but for” instruction, as opposed to
15

“motivating factor” – given especially the colorful bowl of nigiri the defense used in defending Zarda’s termination. See plaintiff’s opening brief at 44.
Defendants argue that this Court routinely applies the same standards to state and federal law. This is usually true, but as a matter of logic, and assuming state-discrimination law has a higher burden of proof than federal, a decision under federal law is determinative under state law. The obverse, however, is not true. This is why, as example, this Court occasionally remands for determination under the New York City Human Rights Law even if federal law does not carry plaintiff the day. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278-79 (2d Cir. 2009). In these unusual circumstances where the Court instructed the jury under the more restrictive standard, JA.1771, over objection, JA.1667-68, the defendants’ suggested rule of thumb does not apply. The defendants’ multiple chants of “jury of his peers” Def. Br. at 3, 4, 28, thus mean nothing. The jury of Zarda’s peers decided the case under an instruction inapplicable to Title VII.
We do not believe state law requires “but for” causation. The Court wanted to rely on New York Pattern Jury Instructions, JA.1789, but pattern jury instructions have been held to be incorrect. See People v. Missrie, 300 A.D.2d 35, 36 (First Dept. 2002). The PJI is a guide for New York trial judges; federal judges sitting in diversity must apply the law of the state’s highest court. New York law has usually followed federal discrimination law, thus we do not see why it would not with respect to this instruction. See Ferrante v. Am. Lung Ass'n, 90 N.Y.2d 623, 631 (1997) (applying federal law in interpreting state law). Researching the matter further, the PJI does advise judges to instruct on McDonnell-Douglas, and perhaps Judge Bianco was not defying circuit law as we previously suggested. Undoubtedly, however, he did not instruct under
16

anything resembling Title VII as the Circuit recognizes, nor consider what the New York Court of Appeals would have done.
III: Plaintiff’s performance was superlative Performance was never an issue in this case. At the beginning of trial, defense counsel
conceded “Don Zarda was an excellent jumper, absolutely,” JA919, and Maynard admitted he was “a good skydiver” and a “good guy.” JA,1426-27. Maynard said this despite the allegedly outrageous statement Zarda made – tongue held firmly in cheek – that he was gay, something which allegedly he also said in 2001 – when he was barely out of the closet –supposedly bringing women to tears. Id.11 We moved in limine to keep that information out of evidence – something the judge was supposed to rule on before trial, as the language of Fed. Rule Evid. 104(a) reads. (“must rule” before trial). Indeed, the Court was asked to rule twice, JA18-19 (170, 190) but somewhere “terminated” the motion with no decision. JA18, entry of 2/17/15. The Court probably did this for docket control, and didn’t resolve the motion until well into trial. See JA.1359, 1433. In so doing, the it defeated the purpose of an in limine motion, which is to allow a party to know in advance what evidence is coming in. The defense felt free to open on the matter of plaintiff’s 2001 termination, despite no ruling on that issue. JA.1978. The fact was that, in 2001, an expression of sexual-orientation identity could get you fired in New York; it still can in most places, unless Title VII is clarified as the EEOC believes it should be. This failure to rule prejudiced plaintiff because he had either a reason to believe that the evidence would not come in, or at least that defense counsel hold back, knowing there was a pending motion on the matter. Also, we contend the evidence of an earlier era discrimination in itself – something the defense
11 Defense counsel then went on in opening about Maynard’s warning plaintiff not to reveal his sexual orientation ever again, JA.919-20, a contention that Maynard denied. JA.1460-61.
17

doesn’t deny. Neither assumption – grounded in the rules and fair play – was adhered to, and plaintiff looked like he was hiding something by not mentioning the first termination in his opening statement.
The judge made not a comment about performance at the summary judgment stage, SPA20-38, with the exception of the complaint that Zarda, doing his job, mentioned he was gay when he touched Orellana’s hip, strapped to and on the opposite end of it. SPA28.12 This meager comment was not enough to defeat summary judgment under Title VII when all that is needed is a single motivating factor. Even the owner of Altitude Express said “thousands [are] coming through” SDLI and he “can’t have every customer. . . happy[.]” JA1356. Rich Winstock, Maynard’s second in command tried to save Zarda from termination and later opined thought it was unfair. JA.399, 413, 591. Though the defense never explained how thoroughly they searched email records, and never used evaluations, we were able to come up with our one missive from a happy customer. JA.592. On videos, the customers are happy. Electronic Appendix Vol I. But this was all before Orellana told her boyfriend that she had received “hip discomfort” from a gay man. JA.481.
Lauren Calllanan, who didn't “want to go to court” testified that she happily hugged Don when she saw him at her deposition, and that Don had the safety and personality and experience that a skydiver needed. JA.1264-66. In cross examination, she testified to hearsay complaints, none documented, JA.151, that were twisted in summation as real. Hearsay “belief” is not a fair comment on the evidence. Certainly these complaints do not come up on the tape of plaintiff’s
12 The judge noted in that decision that we had no female comparators to support a claim of sexual stereotyping claim. SPA23. We appeal on the basis of Baldwin, but we don’t need female comparators to prove sex stereotypes. What if the plaintiff in Price Waterhouse were part of an all-female workforce and met with the same evaluations on her application for partnership? Would she have needed female comparators?
18

termination. All that came up was that “[i]t just [was]n’t working” for Maynard to have plaintiff work at Altitude Express. The only specific reason given to support that was talking to a single customer about being gay, a “personal escapade,” uninvestigated except to speak to Zarda.
Don Zarda had performed thousands of jumps, where safety is the most important concern, fun being the second. Orellana survived her jump without a scratch, bragged about it to others, JA.1236, and shows not a moment of unhappiness. “Rating the jump in question, Winstock rated Zarda’s performance near perfect, as did Maynard: “eight or nine.” JA.1485. Not a single passenger was ever injured under Don’s care. Although there were deaths at Altitude Express before Don arrived, there were none on his watch. To emphasize this pernicious distortion about plaintiff’s performance is to demonstrate the defense strategy never came up until after summary judgment. The genesis of the defense testimony – sex addict, woman hater – is what this case is about: plaintiff’s identification as gay. It is like we are in the 1960s, and there are customers who don't want to be served by black workers, a uniformly derided notion under Title VII, then are terminated because they walk and eat in a different manner that we cannot bring ourselves to detail: we hope you get the picture.
Maynard did testify that he had never received other complaints in all his years of experience, but that was a lie. Today, angry customers complain on the internet openly. Maynard admitted that you can’t have everyone happy and you can’t have everyone return. JA.332. Why is it that unhappiness about being told you are with a gay guy who is doing his job grounds for termination? So while Maynard conveniently forgot other complaints made to him, when confronted others at deposition and trial, JA1458-59, he had to admit their truth. He rejected most of them out of hand, JA314-15, referring to a nearly identical complaint as a “bunch of lies.” JA618. So let's get this misrepresentation about Mr. Zarda's performance out of the way. It
19

is pure obfuscation, and, under the Rule 56 portion of this appeal, was never part of the analysis except for “complaint qua complaint.”
IV: The Defense misunderstands the discrimination it invoked at trial and makes a mockery of discovery and fair pre-trial procedure.
A. Worker’s Compensation The defense does not address the tenor of this argument. Plaintiff was asked at his
deposition, where there is wide latitude in questioning, about whether Worker’s Compensation might have factored into the decision to terminate him. If anything, here’s evidence that helps plaintiff on Point I because it provides another potentially “determinative” factor that would not have been allowed under Title VII. At his deposition, Mr. Zarda speculated that Worker’s Compensation might have been part of the decision to terminate him. JA.228. The evidence was inadmissible – plaintiff testified to a possibility. He honestly could not deny that Maynard discriminated in more than one way. But this was not only irrelevant, not only speculative, but makes Worker’s Compensation a basis upon which an employer can articulate a neutral reason for termination. A neutral articulation must be non-discriminatory, thus the admission if the use of worker’s compensation was not only harmful, but flew in the face of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). As the defense doesn’t deny, worker’s compensation recipients are a protected class.
B. Three witnesses hidden in a pile of fifty. The defense notes correctly that plaintiff knew of the existence of certain people who
testified. Also, the defense gave a thumbnail description as to the testimony of some of these witnesses, though not in compliance with the minimal relief ordered by the Court. What we have a problem with is whom out of the fifty would the defense choose to testify? Fifty new
20

witnesses? We should not have had to guess – that’s what the rules require, and we had no idea that Duncan Shaw hated plaintiff so much that even with him in the grave, Shaw would pay his own flight to New York to testify so against him, and with such relish. The same is true for the others. Had the defense reconsidered its case in a timely manner, and named the three, we could have deposed the new witnesses, and there would be no prejudice. But these witnesses were brought into trial hidden in a Trojan’s Horse, and plaintiff was sandbagged in a way that the rules forbid.
C. Appeals to Prejudice. The defense has not rebutted this contention, and we believe the Court is “smart enough
to pick up on” JA 1691, our unrebutted points about defense counsel’s summation and the Court’s striking plaintiff’s response to the “oddness” of his relationship with Ira Helfand.
21

CONCLUSION The Estate asks that the Court vacate the judgment, and remand for such relief as may be appropriate. Dated: New York, New York July 7, 2016
/s/ GREGORY ANTOLLINO Attorney for Plaintiff-Appellant
/s/ STEPHEN BERGSTEIN Attorney for Plaintiff-Appellant
22

CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) Gregory Antollino, an attorney admitted to this Circuit and attorney for plaintiff, hereby certifies pursuant to Federal Rule of Procedure 32(a)(7)(C) that this brief contains 6985 words as computed by the word processing program (Microsoft Word) used to prepare the brief. The brief was scanned and found virus free by MacKeeper. /s/ GREGORY ANTOLLINO
23

 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD, Defendants-Appellees.

On Appeal from the U.S. District Court for the Eastern District of New York Hon. Joseph Bianco, Judge

BRIEF OF LAMBDA LEGAL AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL

MICHAEL D.B. KAVEY

OMAR GONZALEZ-PAGAN

LGBTQ RIGHTS CLINIC

LAMBDA LEGAL DEFENSE AND

WASHINGTON SQ. LEGAL SERVICES, INC. EDUCATION FUND, INC.

NYU SCHOOL OF LAW§

120 Wall Street, 19th Floor

245 Sullivan Street, 5th Floor

New York, New York 10005

New York, New York 10012

(212) 809-8585

(917) 623-8884

§ NYU School of Law is named for

GREGORY R. NEVINS* LAMBDA LEGAL DEFENSE AND

identification purposes only. This brief EDUCATION FUND, INC.

does not purport to present the law

730 Peachtree Street NE, Suite 1070

school’s views.

Atlanta, Georgia 30308

(917) 623-8884

* Admission pending.

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..................................................... iii
TABLE OF AUTHORITIES ................................................................................ iv
AMICUS CURIAE’S INTEREST ........................................................................... 1
SUMMARY OF THE ARGUMENT ..................................................................... 2
ARGUMENT ........................................................................................................ 3
I. TITLE VII’S PROSCRIPTION AGAINST SEX DISCRIMINATION ENCOMPASSES DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION...........................................3
A. Employees, Including LGBT Employees, Are Protected From Discrimination Based On Nonconformity To Sex Stereotypes. ........................................................................................3
1. A Man's Attraction To Men Is Undeniably A Stereotypically Gender-Nonconforming Trait ................................................. 4
2. Dawson's Dicta Is Incorrect To The Extent It Purports To Immunize Discrimination Based On Certain Types of Gender Nonconformity......................................................................... 6
B. When Employers Discriminate Based on Sexual Orientation, They Necessarily Consider An Employee’s Sex. ................................................................................................... 11
C. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII..................13
II. THE COURT SHOULD REJECT AND DISAVOW THE REASONING OF SIMONTON AND DAWSON.........................................15
i

A. Courts Should Not Rely Upon Congressional Inaction When Interpreting Title VII’s Sex Discrimination Prohibition. .......................................................................................15
B. Should The Court Be Inclined To Consider Congress’s Inaction, It Should Also Focus On Congress’s Inaction In The Face Of The EEOC’s Decision In Baldwin And Court Decisions Holding That Sexual Orientation Discrimination Is Actionable Under Title VII. ..................................18
C. The Court Can And Should Reconsider Simonton And Dawson. ............................................................................................19
III. THE EEOC’S INTERPRETATION OF TITLE VII IN BALDWIN IS ENTITLED TO STRONG DEFERENCE. ............................23
IV. THIS COURT SHOULD REJECT EFFORTS TO CREATE A SEXUAL ORIENTATION EXCEPTION TO TITLE VII’S CLEAR STATUTORY LANGUAGE.........................................................26
CONCLUSION ................................................................................................... 31 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

CORPORATE DISCLOSURE STATEMENT Amicus curiae Lambda Legal Defense and Education Fund, Inc. has no parent corporation(s), does not have shareholders, and does not issue stock.
iii

TABLE OF AUTHORITIES CASES Back v. Hastings On Hudson Union Free Sch. Dist.,
365 F.3d 107 (2d Cir. 2004) ........................................................................ 4, 9, 10 Baldwin v. Foxx, 2015 WL 4397641 (E.E.O.C. July 15, 2015) ...................... passim Boutillier v. Hartford Pub. Schs.,
2014 WL 4794527 (D. Conn. Sept. 25, 2014)................................................. 5, 19 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2d Cir. 2005) .................................... 21 Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ............................... 5, 6, 19 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ... passim
Christiansen v. Omnicom Group, Inc., 2016 WL 95181 (S.D.N.Y. Mar. 9, 2016) ................................................. 5, 28, 30
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)............ 8, 11
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ........................... passim Deneffe v. Skywest, Inc.,
2015 WL 2265373 (D. Colo. May 11, 2015) .................................................. 5, 18 Diebold Found. Inc. v. C.I.R., 736 F.3d 172 (2d Cir. 2013)................................... 21
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. CT. 2028 (2015) ................... 22 EEOC v. Seafarers Int’l Union, 394 F.3d 197 (4th Cir. 2005)......................... 24, 25 Estate of D.B. v. Thousand Islands Cent. Sch. Dist.,
2016 WL 945350 (N.D.N.Y. Mar. 14, 2016) .................................................. 7, 23
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ........................................... 13 Finkel v. Stratton Corp., 962 F.2d 169 (2d Cir. 1992) ........................................... 20
iv

Germain v. Conn. Nat’l Bank, 926 F.2d 191 (2d Cir. 1991), rev’d on other grounds, 503 U.S. 249 (1992) ...... 21
Getty Petroleum Corp. v. Bartco Petro. Corp., 858 F.2d 103 (2d Cir. 1988).. 20, 21 Gilbert v. Country Music Ass’n, 432 F. App’x 516 (6th Cir. 2011)......................... 4 Girouard v. United States, 328 U.S. 61 (1946) ...................................................... 16 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).............................................. 27 Hall v. BNSF Ry. Co.,
2014 WL 4719007 (W.D. Wash. Sept. 22, 2014).......................................... 12, 18 Heller v. Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002) .................................................... 5, 12, 18, 19 Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008).................................. 13, 14, 21 In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24 (2d Cir. 2006)................ 21, 22 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)......................................................... 24 Isaacs v. Felder Servs., LLC,
2015 WL 6560655 (M.D. Ala. Oct. 29, 2015) .................................... 5, 12, 14, 18 Jones v. Am. Postal Workers Union, 192 F.3d 417 (4th Cir. 1999) ....................... 24 Kiley v. Am. Soc. for Prevention of Cruelty to Animals,
296 F. App’x 107 (2d Cir. 2008) ....................................................................... 6, 7 Koke v. Baumgardner, 2016 WL 93094 (S.D.N.Y. Jan. 5, 2016) ............................ 6 Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) ........ 5, 12, 18 Lawrence v. Texas, 539 U.S. 558 (2003)................................................................ 29 Lewis v. City of Chicago, 560 U.S. 205 (2010) ................................................ 17, 22
v

Local Union 36 v. N.L.R.B., 706 F.3d 73 (2d Cir. 2013)........................................ 20 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................... 14 Ming Shi Zue v. BIA, 439 F.3d 111 (2d Cir. 2006) ................................................. 20 Nat’l Cable & Telecomm. v. Brand X Internet Servs., 545 U.S. 967 (2005) ......... 25 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).......................... 25, 26 New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201 (2d Cir. 2006) ........................ 20 Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)...... 11 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................. passim Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ............... 16, 17, 27 Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) .. 13, 23 Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).............................. 16 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ......................... 11 Pond v. Braniff Airways, Inc., 500 F.2d 161 (5th Cir. 1974) ................................... 9 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)........................................ passim Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009)................................ 5 Roberts v. United Parcel Serv., Inc.,
115 F. Supp. 3d 344 (E.D.N.Y. 2015) ............................................... 16, 24, 26, 30 Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ............................................. 23 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) .................................... 13 Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58 (2d Cir. 2009) ........ 21 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ............................................ passim
vi

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ....................................................... 26 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ........... 22 Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988) ................................................. 9 Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971)....................................... 8 Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir. 1996)..................... 10 TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) .................................. 5, 18 Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) ....................................... 22 Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) .......................... 25 Union of Needletrades, Indus. & Textile Emps. v. U.S.I.N.S,
336 F.3d 200 (2d Cir. 2003) ................................................................................ 20 United States v. Brutus, 505 F.3d 80 (2d Cir. 2007) .............................................. 21 United States v. Craft, 535 U.S. 274 (2002) ........................................................... 16 United States v. Elbert, 658 F.3d 220 (2d Cir. 2011) ............................................. 21 United States v. Mead Corp., 533 U.S. 218 (2001) ................................................ 24 Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ........... 27 Velasco-Giron v. Holder, 773 F.3d 774 (7th Cir. 2014)......................................... 24 Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006)............................... 4, 5 Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927 (C.D. Cal. 2015) ............ passim Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456 (N.D. Cal. 1975) ............ 19 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ...................................................... 9
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Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007) .. 13, 14 Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) .............. 10, 22, 23, 30 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) .................. 7, 20 Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Circ. 2011) ................................... 19 Zuber v. Allen, 396 U.S. 168 (1969) ................................................................. 15, 16 STATUTES 1 U.S.C. § 7 ............................................................................................................. 29 42 U.S.C. § 1983 ....................................................................................................... 4 42 U.S.C. § 2000e-2.................................................................................................. 3 42 U.S.C. § 2000e-2(a)(1)......................................................................................... 2 42 U.S.C. § 2000e-16(b) ......................................................................................... 24 42 U.S.C. § 12211(a) .............................................................................................. 28 Marriage Equality Act, 2011 Sess. Law News of N.Y. Ch. 95 (A. 8354) (McKinney’s) .......................................................................................................... 29 OTHER AUTHORITIES Am. Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights (1973), 131 Am. J. Psychiatry 497 (1974).............................................................. 28 Brief of Plaintiff-Appellee, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (Nos. 12-2335, 12-2435), 2012 WL 3900586 ........................................................ 30
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AMICUS CURIAE’S INTEREST Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) is the nation’s oldest and largest legal organization committed to achieving the full recognition of the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) people and people living with HIV through impact litigation, education, and policy advocacy. Since its founding in 1973, Lambda Legal has striven to ensure employment fairness for LGBT people by serving as counsel of record or amicus curiae in litigation addressing the application of federal law to discrimination against LGBT individuals. Amicus files this brief, pursuant to Federal Rule of Appellate Procedure 29(b).
Appellants consent to the filing of the brief. Appellees do not.1
1 No party’s counsel authored this brief in whole or in part. No party, party’s counsel, or other person—other than amicus curiae, its members, or its counsel— has contributed money intended to fund preparing or submitting the brief.
1

SUMMARY OF THE ARGUMENT This Court is being asked whether sexual orientation discrimination is actionable under Title VII’s sex discrimination proscription, 42 U.S.C. § 2000e2(a)(1). Amicus urges this Court to answer such question in the affirmative for the reasons below. First, sexual orientation discrimination is sex discrimination because: (1) it is based on gendered stereotypes that a man should only be attracted to women, and a woman only be attracted to men; (2) it inherently involves considerations of an employee’s sex; and (3) discrimination based on association with someone of a particular sex is analogous to discrimination based on association with someone of a particular race. Second, because Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), were wrongly decided, this Court can and should reconsider and reject their reasoning. Third, the Equal Employment Opportunity Commission’s (“EEOC”) decision in Baldwin v. Foxx, 2015 WL 4397641 (E.E.O.C. July 16, 2015), holding that sexual orientation discrimination is sex discrimination, is entitled to Chevron deference by this Court and overrides contrary precedent. Finally, considering the new legal landscape surrounding the legal protections afforded to lesbians and gay men by the Constitution, this Court should
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reject any efforts to create a gay exception to Title VII’s sex discrimination prohibition.
ARGUMENT I. TITLE VII’S PROSCRIPTION AGAINST SEX
DISCRIMINATION ENCOMPASSES DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION. Under any theory, antigay discrimination that an employee experiences is necessarily “because of such individual’s ... sex.” 42 U.S.C. § 2000e-2. First, sexual orientation discrimination involves sex stereotyping, as it is based on the perception that the sexual orientation of lesbians and gay men does not conform to gender norms. Second, discrimination on the basis of sexual orientation necessarily involves sex-based considerations prohibited by Title VII. Finally, just as discrimination against someone because of their association with someone of a particular race has been recognized as race discrimination, discrimination against someone because of their romantic involvement with someone of a particular sex is sex discrimination. A. Employees, Including LGBT Employees, Are Protected From
Discrimination Based On Nonconformity To Sex Stereotypes. In 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins, 490 U.S. 228, that “[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match[] the stereotype associated with their group.” Id. at 251. Lest any mystery
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remain, this Court has held “that adverse actions taken on the basis of gender stereotypes can constitute sex discrimination.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 130 (2d Cir. 2004).2 Because a man who is attracted to men does not conform to gender stereotypes, it is untenable to suggest that Title VII does not cover discrimination based on this attraction.
1. A Man’s Attraction to Men Is Undeniably a Stereotypically Gender-Nonconforming Trait.
Indisputably, attraction to women is a gender norm or stereotype about men. Discrimination and harassment against men who defy that stereotype is “motivated by a desire to enforce heterosexually defined gender norms.” Baldwin, 2015 WL 4397641, *8 (citation omitted). Indeed, Dawson and other decisions contrary to amicus’s coverage position have freely conceded the presence of gender stereotyping in sexual orientation discrimination. See Dawson, 398 F.3d at 218 (“‘Stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.’”) (citation omitted); Gilbert v. Country Music Ass’n, 432 F. App’x 516, 520 (6th Cir. 2011) (“Gilbert fits every male ‘stereotype’ save one—sexual orientation”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (“[A]ll homosexuals, by
2 While Back was brought under 42 U.S.C. § 1983, this Court made clear that its analysis was the same under Title VII.
4

definition, fail to conform to traditional gender norms in their sexual practices.”).
Courts cannot coherently follow Price Waterhouse and still immunize
discrimination based on failure to conform to the gender norm that men should
only date women.
Increasingly, courts have concluded that distinguishing between sex
discrimination and sexual orientation discrimination is indefensible, as sanctioning
discrimination based on failure to conform to heterosexually-defined gender norms does not coherently apply Price Waterhouse.3 “It is impossible to categorically
separate ‘sexual orientation discrimination’ from discrimination on the basis of sex
or from gender stereotypes,” because “to do so would result in a false choice.”
Videckis v. Pepperdine Univ., 2015 WL 8916764, *7 (C.D. Cal. Dec. 15, 2015). In
Dawson, this Court notably observed that “the borders” between sex and sexual
orientation are “imprecise.” 398 F.3d at 217. See also Prowel v. Wise Bus. Forms,
Inc., 579 F.3d 285, 291 (3d Cir. 2009) (“line between sexual orientation
discrimination and [sex] discrimination” is “difficult to draw”); Christiansen v.
Omnicom Group, Inc., 2016 WL 951581, *14 (S.D.N.Y. Mar. 9, 2016) (“no
3 See, e.g., Isaacs v. Felder Servs., LLC, 2015 WL 6560655, *4 (M.D. Ala. Oct. 29, 2015); Boutillier v. Hartford Pub. Schs., 2014 WL 4794527, *2 (D. Conn. Sept. 25, 2014); Deneffe v. SkyWest, Inc., 2015 WL 2265373, *5-6 (D. Colo. May 11, 2015); TerVeer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002); Centola v. Potter, 183 F. Supp. 2d 403, 409 (D. Mass. 2002).
5

coherent line can be drawn between” sex and sexual orientation claims); Centola, 183 F. Supp. 2d at 408. And while some courts have attempted to impose an illusory line between allegations based on sexual orientation and allegations based on sex, the reason courts find it “difficult to discern” or draw this line, Dawson, 398 F.3d at 217, is because “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.” Videckis, 2015 WL 8916764, *6.
2. Dawson’s Dicta Is Incorrect To The Extent It Purports To Immunize Discrimination Based on Certain Types of Gender Nonconformity.
In Dawson, this Court stated in dicta that “[g]enerally speaking, one can fail to conform to gender stereotypes in two ways: (1) through behavior or (2) through appearance.” Dawson, 398 F.3d at 221 (citations omitted). That statement lamentably has been read to give a blank check to employers who discriminate based on an employee’s nonconformity in sexual attraction, as that nonconformity may not be related to the employee’s behavior or appearance.4 See, e.g., Kiley v. Am. Soc. for Prevention of Cruelty to Animals, 296 F. App’x 107, 109 (2d Cir. 2008); Estate of D.B. v. Thousand Islands Cent. Sch. Dist., 2016 WL 945350, *8
4 This brief focuses its sex stereotyping discussion on Dawson, and not Simonton, because this Court did “not reach the merits of” a possible sex stereotyping discrimination claim in Simonton. See Simonton, 232 F.3d at 38; see also Koke v. Baumgardner, 2016 WL 93094, *2 (S.D.N.Y. Jan. 5, 2016).
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(N.D.N.Y. Mar. 14, 2016) (focusing on the victim’s sexual orientation as “the critical fact,” stating “If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping claim by that individual is improper bootstrapping. If, on the other hand, the harassment consists of homophobic slurs directed at a heterosexual, then a gender-stereotyping claim by that individual is possible.”).
But Dawson actually held that the plaintiff did not sufficiently prove sexual orientation discrimination, period, and thus affirmed summary judgment not only on her federal claims but also on her claims under state and local laws explicitly prohibiting sexual orientation discrimination. See Dawson, 398 F.2d at 213, 22425. Thus, any insinuation in Dawson that sexual orientation discrimination is not sex stereotyping discrimination, or not covered by Title VII, is dicta that does not bind this Court, because it was not relevant to the holding that Dawson failed to establish sexual orientation discrimination on the facts. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006).
Dawson thus did not create binding precedent either concerning Title VII’s coverage of sexual orientation discrimination or in its behavior/appearance passage. Nor, for the reasons below, should the Court create a behavior/ appearance limitation on actionable sex stereotyping discrimination.
a. The Behavior/Appearance Limitation Ignores Price Waterhouse’s Import. 7

The behavior/appearance limitation in Dawson appears to narrow inappropriately the universe of relevant gender norms to only those that Ann Hopkins was deemed to transgress in Price Waterhouse, despite that case’s declaration that Title VII was “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Price Waterhouse, 490 U.S. at 251. Moreover, the “entire spectrum” phrase previously appeared in City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), which had a decidedly broad view of what constituted discrimination based on sex stereotypes. See id. at 707, n.13. Manhart struck down the employer’s policy of making women, as a group, pay higher pension contributions because it is “unquestionably true” that “[w]omen, as a class, do live longer than men.” 435 U.S. at 707. But because “[m]any women do not live as long as the average man” and Title VII’s “focus on the individual is unambiguous,” a “‘stereotyped’ answer to” the question of whether discrimination occurred “may not be the same as the answer that the language and purpose of the statute command.” Id.at 708. Manhart had nothing to do with behavior or appearance, and neither did the case from which Manhart borrowed the “entire spectrum” concept – Sprogis v. United Airlines, 444 F.2d 1194, 1198 (7th Cir. 1971) (invalidating airline’s policy against married female flight attendants).
8

Many other cases through Title VII’s history reflect a broad understanding of sex stereotypes that the statute combats, including stereotypes about life choices about families and relationships. Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir. 1988) (refusing to credit “stereotype” that men are more often sole wage earners); Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir. 1974) (discrimination based on “stereotypical culturally-based concepts of the abilities of people to perform certain tasks because of their sex” violates Title VII); cf. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding statute rooted in stereotype that families depend on male breadwinners unconstitutional).
b. The Behavior/Appearance Limitation Is Inconsistent With Back.
In contrast to Dawson, Back is both an actual holding about what sex stereotyping is actionable, and a careful examination of the history of sex stereotyping. Back produced evidence that her employer denied her tenure, believing “that a woman cannot ‘be a good mother’ and have a job that requires long hours” or “that a mother who received tenure ‘would not show the same level of commitment she had shown because she had little ones at home.’” Back, 365 F.3d at 120 (alterations omitted). Rather than the approach in Dawson, which apparently viewed the exact stereotypes at issue in Price Waterhouse as an exclusive list, the Back court correctly concluded that a proper reading of Price Waterhouse is that the “question [of w]hat constitutes a gender-based stereotype …
9

must be answered in the particular context in which it arises, and without undue formalization.” Id. at 119-20.
Back cited a variety of precedents demonstrating that the fight against sex stereotyping discrimination always has been concerned with rules and exclusions that would dictate to women (whether working or not) whether they could be in a relationship and, if so, which kind; what their roles in their relationships should be; and what type of family structures they could establish consistent with their job obligations. See Back, 365 F.3d at 120-21, 130 (citations omitted). Thus, the Back court had little trouble recognizing that the employer’s comments about the purported conflict between her motherhood and her commitment to the university reflected the kind of stereotyping that takes no “special training to discern.” 365 F.3d at 120.
In sum, Title VII condemns all non-trivial5 discrimination based on failure to conform to sex stereotypes, whether that nonconformity relates to behavior, appearance, marriage and family decisions, or sexual orientation.
5 In Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir. 1996), this Court upheld hair-length restrictions, rejecting the argument “that Title VII applies to any employment policy with any difference between men and women, no matter how trivial.” Id. at 908. Plainly, after Windsor and Obergefell, discrimination against employees in same-sex relationships cannot be dismissed as too trivial for Title VII coverage.
10

B. When Employers Discriminate Based on Sexual Orientation, They Necessarily Consider An Employee’s Sex.
Sexual orientation discrimination by an employer inherently involves differential treatment based on an employee’s sex, in violation of Title VII, because one cannot consider an individual’s sexual orientation without taking into account that individual’s sex. See Baldwin, 2015 WL 4397641, *5. Cf. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010).
Conceptually, this is an even simpler formulation of why sexual orientation discrimination is sex discrimination under Title VII. Rather than rely on sex stereotypes, the Court need only ask whether the employee would have been discriminated against if the employee had been of a different sex. If the answer is “no,” then the discrimination plainly was because of such individual’s sex.
This Court’s treatment of sexual orientation discrimination as distinct from sex discrimination in Simonton is therefore untenable. For one, the Simonton court did not articulate the relevant standard for sex discrimination as established by the Supreme Court. Manhart articulated the controlling, yet “simple[,] test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” to determine whether a sex-based violation of Title VII occurred. Manhart, 435 U.S. at 711 (quotation omitted). See also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983) (applying Manhart’s “simple test”). Ignoring this test, the Simonton court simply concluded,
11

without support, that “‘sex’ in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation,” and that “Title VII does not proscribe discrimination because of sexual orientation.” 232 F.3d at 36. Simonton’s articulation disregards the “inescapabl[e]” link between sexual orientation and sex, Baldwin, 2015 WL 4397641, *5, and fundamentally misapprehends the nature of the inquiry courts are required to perform when evaluating sex discrimination claims.
Indeed, numerous courts have ruled in favor of lesbian or gay Title VII plaintiffs, using the simple logic noted above. See, e.g., Isaacs, 2015 WL 6560655, *3 (“If a business fires Ricky because of his sexual activities with Fred, while this action would not have been taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.”) (alterations, citation omitted); Hall v. BNSF Ry. Co., 2014 WL 4719007, *3 (W.D. Wash. Sept. 22, 2014); Koren, 894 F. Supp. 2d at 1038; Heller, 195 F. Supp. 2d at 1223; see also Videckis, 2015 WL 8916764, *8.
Thus, because “sexual orientation is inseparable from and inescapably linked to sex,” “allegations of sexual orientation discrimination [necessarily] involve sex-based considerations.” Baldwin, 2015 WL 4397641, *5; see also Videckis, 2015 WL 8916764, *7.
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C. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII.
It is impossible to reconcile this Court’s holding that discrimination based on an employee’s interracial marriage or interracial associations constitutes race discrimination with an argument that discrimination based on a worker’s same-sex intimate relationships is not sex discrimination. In Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008), a case post-dating Simonton and Dawson, this Court held that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139 (emphasis in original); see also Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986); Schroer v. Billington, 577 F. Supp. 2d 293, 307 (D.D.C. 2008). The same principles of construction apply to determining what constitutes discrimination “because of race” and “because of ... sex,” and thus should dictate the same treatment of relationships involving the enumerated traits in Title VII.
In light of Holcomb, and this Court’s obligation “to give Title VII a liberal construction,” Parr, 791 F.2d at 892, and “harmonize the standards” concerning actionable conduct among the categories enumerated in Title VII, Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998); see also Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 (2d Cir. 2007), the Court should reject the
13

idea that Title VII does not help those who suffer employment discrimination as a result of their association with persons of a particular sex.
In addition, this Court’s analysis should be informed by how an individual’s right to marry is protected by the Constitution no matter the race or sex of the person the individual chooses to marry. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015); Loving v. Virginia, 388 U.S. 1, 12 (1967). Unlike interracial couples, whose right to marry was recognized in 1967, same-sex couples were unable to marry in most jurisdictions until relatively recently. But now, there should be no question that whether for the purposes of due process analysis or statutory interpretation, same-sex relationships and interracial relationships are afforded the same protections.
Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9. Accordingly, this Court should treat discrimination based on same-sex relationships just as it treats discrimination based on interracial relationships, following Holcomb’s liberal construction of Title VII and “reject[ing] [the] restrictive reading of Title VII” employed by Simonton and Dawson. Holcomb, 521 F.3d at 139. Discrimination on the basis of an employee’s personal association with someone of a particular sex is discrimination because of sex. See Videckis, 2015 WL 1735191, *8; Isaacs, 2015 WL 6560655, *3.
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II. THE COURT SHOULD REJECT AND DISAVOW THE REASONING OF SIMONTON AND DAWSON.
Simonton and Dawson do not constrain this Court from holding that discrimination based on sexual orientation is sex discrimination under Title VII, because Simonton’s holding and Dawson’s dicta were clearly incorrect, and because legal developments post-dating them have neutered any precedential value they might have had.
A. Courts Should Not Rely Upon Congressional Inaction When Interpreting Title VII’s Sex Discrimination Prohibition.
This Court’s decision in Simonton, and Dawson’s reliance on it, is erroneous because it relied on Congressional inaction as the basis to carve out gay people from Title VII’s protections. In Simonton, this Court primarily relied on Congressional inaction on legislation that would have made explicit Title VII’s proscription on discrimination based on sexual orientation in order to find that “Title VII does not proscribe discrimination because of sexual orientation.” 232 F.3d at 35; see also id. at 36. But reliance on Congressional inaction for statutory interpretation, especially with regards to Title VII’s sex discrimination proscription, is not only treacherous, it is impermissible.
The Supreme Court has taken a dim view of reliance on Congressional inaction as a tool of statutory interpretation. Simply put, “[l]egislative silence is a poor beacon to follow in discerning the proper statutory route.” Zuber v. Allen,
15

396 U.S. 168, 185 (1969); see also Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990); Girouard v. United States, 328 U.S. 61, 69 (1946). That is because Congressional inaction may be interpreted in many different ways, including an acknowledgement that Title VII’s sex discrimination prohibition already encompasses discrimination on the basis of sexual orientation. See United States v. Craft, 535 U.S. 274, 287 (2002); Girouard, 328 U.S. at 70.
Moreover, “[t]he idea that congressional action is required (and inaction is therefore instructive in part) rests on the notion that protection against sexual orientation discrimination under Title VII would create a new class of covered persons. But analogous case law confirms this is not true.” Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 364 (E.D.N.Y. 2015) (citation omitted).
The Supreme Court has specifically instructed that Title VII should be interpreted based on the words of the statute and not on some divining of the evils that Congress meant to address. For example, when the Supreme Court held “that nothing in Title VII necessarily bars a claim of discrimination ‘because of ... sex’ merely because the plaintiff and the defendant ... are of the same sex” in Oncale v. Sundowner Offshore Servs., Inc., it did so while noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. 75, 79-80 (1998). Similarly, the
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Supreme Court has stated that it is not for the courts “to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010); see also id. at 217 (court’s “charge is to give effect to the law Congress enacted” even if “effect was unintended”). One can be reasonably sure that the unanimous Oncale Court, in dismissing the relevance of the motivations of the 88th Congress that passed Title VII, was not inviting courts deciding coverage issues to shift their focus to what later sessions of Congress did not enact into statutory law.
As a result, judge-made rules must not insulate from liability conduct falling within the language of Title VII. Whatever flexibility lower courts might have, when it comes to Title VII, a court’s job is to entertain all claims that fall within “the statutory requirements,” Oncale, 523 U.S. at 80, and not limit claims to only those “necessary to achieve what we think Congress really intended.” Lewis, 560 U.S. at 215.
While this Court in Simonton failed to understand “how Oncale change[d] [its] well-settled precedent that ‘sex’ refers to membership in a class delineated by gender,” 232 F.3d at 36, and purported to reaffirm in Dawson that sex stereotyping claims “should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” Dawson, 398 F.3d at 218-21 (citation omitted), such results-oriented approach is contrary to the Supreme Court’s clear instructions regarding the
17

interpretation of Title VII, which is to follow the words of the statute, and let the chips fall where they may.
B. Should The Court Be Inclined To Consider Congress’s Inaction, It Should Also Focus On Congress’s Inaction In The Face Of The EEOC’s Decision In Baldwin And Court Decisions Holding That Sexual Orientation Discrimination Is Actionable Under Title VII.
While this Court should rely on the text of Title VII for its interpretation, to the extent this Court continues to rely on Congressional inaction as a tool to interpret Title VII, it should do so bearing in mind Congress’s inaction in the face of the EEOC’s decision in Baldwin and decisions by numerous federal courts holding that sexual orientation discrimination is actionable under Title VII.
The EEOC’s decision in Baldwin holding that discrimination on the basis sexual orientation violates Title VII occurred in mid-2015 and to date Congress has taken no action to override it. Similarly, multiple federal courts throughout the country have held that claims of discrimination against gay people under Title VII (whether based on same-sex relationships, attraction, or orientation, or on sex stereotypes) are actionable. See, e.g., Isaacs, 2015 WL 6560655, *3 (“This court agrees … that claims of sexual orientation-based discrimination are cognizable under Title VII.”); Deneffe, 2015 WL 2265373, *5-6; Hall, 2014 WL 4719007, *45; TerVeer, 34 F. Supp. 3d at 116; Koren, 894 F. Supp. 2d at 1037-38; Heller, 195
18

F. Supp. 2d at 1223. Cf. Videckis, 2015 WL 8916764, *8; Boutillier, 2014 WL 4794527, *2; Centola, 183 F. Supp. 2d at 410.
Congress’s lack of action with regards to these decisions, some of them dating back more than a decade, could be seen as ratifying the understanding that sexual orientation discrimination violates Title VII’s sex discrimination prohibition. Any argument that Baldwin and some of the aforementioned decisions are too recent to rely on is misguided. For if a district court could hold in 1975 that Congress’s failure to enact Bella Abzug’s Equality Act of 1974 was indicative that sexual orientation and gender identity were not covered under Title VII, see Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975), then surely Congress’s lack of action after the EEOC’s decision in Baldwin and the numerous federal courts that have held that sexual orientation discrimination is actionable under Title VII must equally mean that Congress has now ratified such decisions.
C. The Court Can And Should Reconsider Simonton And Dawson.
This Court can and should reconsider Simonton and Dawson because while three-judge panels of this Court should “ordinarily” adhere to a prior panel’s holding, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171-72 (2d Cir. 2001), this general rule does not apply where subsequent legal developments at the Supreme Court, the EEOC, and the Second Circuit have rendered a prior panel’s decision hollow.
19

First, this Court may disregard another panel’s decision when an intervening Supreme Court or Second Circuit en banc decision has explicitly or implicitly rejected the prior panel’s reasoning. See New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 207 (2d Cir. 2006); Union of Needletrades, Indus. & Textile Emps. v. U.S.I.N.S., 336 F.3d 200, 210 (2d Cir. 2003). A panel may also overrule a prior panel by relying on Supreme Court precedent pre-dating the prior panel’s holding if, for example, a more recent, intervening Supreme Court decision lends new significance to the earlier Supreme Court precedent. See Finkel v. Stratton Corp., 962 F.2d 169, 174-75 (2d Cir. 1992); see also Local Union 36 v. N.L.R.B., 706 F.3d 73, 83 (2d Cir. 2013). Supreme Court decisions regarding the proper interpretation of Title VII’s text and the recognition of same-sex relationships and the constitutional rights of lesbians and gay men, see Part IV, have fatally undermined Simonton and Dawson to the point that they should be deemed rejected.
Second, Dawson’s analysis of this issue was dicta, see Part I.A.2, and is therefore not binding on this Court. The obligation to follow prior decisions extends only to express holdings. See Xiao Ji Chen, 471 F.3d at 338; Ming Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006); Getty Petroleum Corp. v. Bartco Petro. Corp., 858 F.2d 103, 113 (2d Cir. 1988). Because the plaintiff in Dawson failed even to raise a triable issue of fact as to sexual orientation discrimination, 398 F.2d
20

at 213, 224-25, any analysis of Title VII’s application to such discrimination was unnecessary and does not bind future panels.
Third, Simonton and Dawson’s conclusions about sexual orientation discrimination are fundamentally inconsistent with Holcomb. See Part I.C. Even if Simonton or Dawson silently rejected the reasoning later endorsed in Holcomb, Holcomb abrogates their unexpressed view. See Getty Petroleum Corp., 858 F.2d at 113 (sub silentio rulings are not binding). It is also well-established that one panel may overrule another to resolve inconsistencies among this Court’s precedents, see Diebold Found., Inc. v. C.I.R., 736 F.3d 172, 183 n.7 (2d Cir. 2013); United States v. Brutus, 505 F.3d 80, 86 n.3, 87 n.5 (2d Cir. 2007); Germain v. Conn. Nat’l Bank, 926 F.2d 191, 193-94 (2d Cir. 1991), rev’d on other grounds, 503 U.S. 249 (1992), or to remedy significant, unforeseen consequences, see Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58, 67-69 (2d Cir. 2009); see also United States v. Elbert, 658 F.3d 220, 222-24 (2d Cir. 2011). Where panels reject a prior panel’s decision in the absence of intervening higher authority, they typically—though not invariably—indicate that their opinion was circulated, prior to filing, to some or all of the Court’s other judges, though they do not always disclose the extent of other judges’ agreement. See Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 & n.5 (2d Cir. 2005); see also In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 39-42 (2d Cir. 2006) (disavowing prior decisions without
21

relying on intervening Supreme Court or en banc precedent and without stating whether opinion was circulated to other judges).
Fourth, because Simonton and Dawson relied on non-textual considerations to carve an exception in Title VII, see Parts II.A and IV, they have been abrogated by the Supreme Court’s repeated repudiation of non-textual interpretations of Title VII. See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (court may not “add words to the law to produce what is thought to be a desirable result”); Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (court’s preference for different rule “cannot justify departing from statutory text”); Lewis, 560 U.S. at 215-17.
Fifth, the EEOC’s decision in Baldwin, a decision entitled to Chevron deference, overrides Simonton and Dawson. See Part III.
Finally, reaffirming Simonton’s and Dawson’s sexual orientation analysis under Title VII would be inconsistent with, and raise constitutional concerns under, this Court’s ruling in Windsor v. United States, 699 F.3d 169 (2012), aff’d, 133 S. Ct. 2675 (2013), adopting heightened constitutional protection for lesbians and gay men. Id. at 181-82.6 It would be untenable for this Court, having deemed sexual orientation classifications “quasi-suspect,” id., to perpetuate a judicial bar
6 Affirming this Court, the Supreme Court also applied heightened scrutiny. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014).
22

on otherwise viable sex-stereotyping and associational-gender claims precisely because they involve sexual orientation bias, or to again single out sexdiscrimination claims by “avowedly homosexual” plaintiffs as a “problem.” Dawson, 398 F.3d at 218; see also Estate of D.B., 2016 WL 945350, *8.7
Applying the foregoing principles, this Court can and should reject Simonton’s and Dawson’s discussion of sexual orientation claims under Title VII.
III. THE EEOC’S INTERPRETATION OF TITLE VII IN BALDWIN IS ENTITLED TO STRONG DEFERENCE.
Further, the EEOC’s decision in Baldwin holding that sexual orientation discrimination is sex discrimination is entitled to strong deference from this Court. See Parr, 791 F.2d at 892 (“EEOC’s interpretation of Title VII is to be accorded ‘great deference.’” (citation omitted)). Indeed, Baldwin supersedes earlier contrary court precedent, including Simonton and Dawson.
Because the EEOC’s decision in Baldwin occurred in a federal sector case, it is entitled to Chevron deference. Under Chevron, an agency’s interpretation of a statute with which it has been charged with administering is to be fully accepted by a court as long as Congress has not directly spoken as to the precise question at
7 This Court’s straightforward application of Price Waterhouse in Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009), which involved a stereotype about malefemale sexual harassment, sharpens the tension between the Court’s general acceptance of sex-stereotyping doctrine and its suspicion of sex-stereotyping claims by gay plaintiffs, Dawson, 398 F.3d at 218.
23

issue and the interpretation proffered by the agency is a permissible one. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also United States v. Mead Corp., 533 U.S. 218, 226-227 (2001) (agency decisions qualify for Chevron deference where “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of such authority.”). Here, Baldwin was decided pursuant to the EEOC’s broad, explicit authority to interpret Title VII (including its substantive terms) in adjudicating federal sector cases. See, e.g., 42 U.S.C. § 2000e-16(b); see also Roberts, 115 F. Supp. 3d at 363 (describing Baldwin as “a landmark ruling—binding on all federal agencies”). And while it appears to be an unsettled question whether Chevron deference applies to EEOC federal sector adjudications, there is authority that agency adjudications are entitled to Chevron deference, where otherwise appropriate. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415 (1999); VelascoGiron v. Holder, 773 F.3d 774 (7th Cir. 2014). Indeed, other Courts of Appeals have granted Chevron deference to the EEOC’s interpretation of the relevant provisions of Title VII. See Jones v. Am. Postal Workers Union, 192 F.3d 417, 427 (4th Cir. 1999) (granting Chevron deference to EEOC’s interpretation of Title VII as set forth in an amicus brief). Cf. EEOC. v. Seafarers Int’l Union, 394 F.3d
24

197, 202 (4th Cir. 2005) (“[W]e review the EEOC’s interpretation of the ADEA under the deferential standard of Chevron.”).
As a result, the EEOC’s decision in Baldwin supersedes any contrary earlier court decisions, because those decisions do not hold that the meaning of “sex” in Title VII is “unambiguous” and because the Commission was acting under a specific grant of authority from Congress in issuing those decisions. The Supreme Court has held that an agency interpretation that is entitled to Chevron deference governs over conflicting judicial precedent, unless that precedent holds that a statute’s language “unambiguously” commands a contrary meaning. Nat’l Cable & Telecomm. v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (“[A]llowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”). Because Baldwin is entitled to Chevron deference, under Brand X, Baldwin supersedes prior contrary precedent, like Simonton and Dawson.
Alternatively, even if this Court were to conclude that the EEOC’s decision in Baldwin is not entitled to Chevron deference, the EEOC’s decision in Baldwin “is entitled to deference to the extent it has the power to persuade.” Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 53 (2d Cir. 2012) (citing Nat’l R.R. Passenger
25

Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002), and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). This Court should therefore defer to the EEOC’s “reasoned” decision in Baldwin, Roberts, 115 F. Supp. 3d at 365, because the EEOC relied “on principles of Title VII in protecting against sex-based discrimination” and applied the “words of the statute Congress [] charged [it] with enforcing.” Id. at 365, 366.
IV. THIS COURT SHOULD REJECT EFFORTS TO CREATE A SEXUAL ORIENTATION EXCEPTION TO TITLE VII’S CLEAR STATUTORY LANGUAGE.
Finally, this Court should reconsider Simonton and Dawson because of what they are: judicially-created carve-outs of gay people from Title VII’s proscription against discrimination that disregard Title VII’s clear and broad statutory language. Indeed, even with regard to clearly actionable sex stereotyping claims, the Simonton and Dawson courts adopted a notion that a statutory exclusion of sexual orientation claims is written into Title VII and that courts must be vigilant to ensure that lesbian and gay employees not be allowed to circumvent this illusory exclusion by invoking their rights to be free from sex-based discrimination. See Dawson, 398 F.3d at 218 (stating that while sex stereotypes “often necessarily blur” into ideas about sexual orientation, nevertheless “a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.” (quotation omitted)). But Congress’s actions subsequent to Price Waterhouse and
26

the legal developments affecting lesbians and gay men subsequent to Simonton and Dawson weigh heavily against judicially engrafting a sexual orientation exception to Title VII’s coverage.
First, the Court should take note of the error of Simonton and Dawson and the fiction of the gay carve-out they create. Consider a hypothetical where the Acme Company issues a memorandum stating that the following employees were terminated for behavior unbecoming of “an Acme Lady”: Agnes for driving a motorcycle to and from work, Beth for wearing pants and not wearing makeup or jewelry every day for six months, and Christine for having a relationship with another woman. If each employee sued under Title VII, they all should be allowed to proceed, because all have viable sex discrimination claims that they would not have been terminated for their conduct had they been male, based on the plain language of the statute and Oncale.
Second, Congress’s actions subsequent to Price Waterhouse reveal that Congress never intended for Title VII to have a sexual orientation exception in its coverage. The Supreme Court has placed great weight on the significance of what amendments were and were not made in the Civil Rights Act of 1991. See Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). In 1989, Price Waterhouse ruled that it is sex discrimination for employees to be fired for their nonconformity with gender
27

norms. In 1990, Congress passed the Americans with Disabilities Act (“ADA”) and incorporated a specific provision excluding homosexuality from the definition of “disability,” despite the fact that it had not been viewed by medical and mental health authorities as an impairment since 1973. See 42 U.S.C. §§ 12211(a); Am. Psychiatric Ass’n, Position Statement: Homosexuality and Civil Rights (1973), in 131 Am. J. Psychiatry 497 (1974). A year later, Congress passed the Civil Rights Act of 1991, specifically repealing the part of Price Waterhouse regarding mixedmotive liability but not limiting in any way its sex stereotyping holding or amending Title VII to exclude coverage of sexual orientation discrimination, as it had a year earlier in passing the ADA. Congress’s decision not to add the 1990 ADA exception for sexual orientation to Title VII coverage in 1991 speaks volumes. It thus was wrong of Simonton and Dawson to judicially engraft the type of “gay exception” found in the ADA onto Title VII when Congress had declined to do so.
Lastly, the world in which Simonton and Dawson were decided, no longer exists. See Christiansen, 2016 WL 951581, *13 (“The broader legal landscape has undergone significant changes since the Second Circuit’s decision in Simonton.”). When Simonton and Dawson were decided, it was constitutional for states to deny lesbians and gay men the fundamental right to marry, and for the federal government to refuse to recognize the marriages of same-sex couples that managed
28

to travel to the handful of jurisdictions that recognized their right to marry. Indeed, when Simonton was decided, conduct central to gay people’s very identity could be criminalized, subjecting them to widespread discrimination. See Lawrence v. Texas, 539 U.S. 558, 575 (2003). As such, it is not difficult to understand why the Simonton and Dawson courts would engraft a gay exception onto Title VII’s sex discrimination prohibition. For if a state could imprison someone for conduct central to being gay, how could employment discrimination on that basis be illegal? For if states could discriminate based on one’s non-stereotypical sexual orientation, how could employment discrimination on such basis be illegal?
But “[t]he nature of injustice is that we may not always see it in our own times,” Obergefell, 135 S. Ct. at 2598, and since Simonton was decided, the societal walls erected against gay people have steadily crumbled. In Lawrence, the Supreme Court “acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State,” Obergefell, 135 S. Ct. at 2604, and it became clear that “samesex couples have the same right as opposite-sex couples to enjoy intimate association.” Id. at 2600. In 2011, New York enacted Marriage Equality Act, 2011 Sess. Law News of N.Y. Ch. 95 (A. 8354) (McKinney’s), recognizing the right of same-sex couples to marry. And in 2012, this Court boldly held that the federal Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, was unconstitutional
29

because lesbians and gay men “compose a class that is subject to heightened scrutiny” just like women. Windsor, 699 F.3d at 185.8 Finally, in 2015, the Supreme Court held that laws barring same-sex couples from marriage “burden the liberty of same-sex couples, and … abridge central precepts of equality.” Obergefell, 135 S. Ct. at 2604.
While none of these cases directly answer “of what protections Title VII affords,” when considered together, they “reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for same-sex relationships and the men and women who engage in them.” Christiansen, 2016 WL 951581, *13; see also Roberts, 115 F. Supp. 3d at 348 (“As the nation’s understanding and acceptance of sexual orientation evolve, so does the law’s definition of appropriate behavior in the workplace.”). It is thus incumbent upon this Court to reject efforts to engraft a gay exception onto Title VII’s sex discrimination prohibition, in the face of its clear statutory language. To do so “would disparage the[] choices and diminish the[] personhood” of gay people, Obergefell, 135 S. Ct. at 2602, and would cast lesbians and gay men out of Title VII’s protective umbrage.
8 The parties in Windsor did not present this Court with, nor did this Court consider, arguments regarding whether DOMA discriminated on the basis of sex. See Brief of Plaintiff-Appellee, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (Nos. 12-2335, 12-2435), 2012 WL 3900586.
30

CONCLUSION The judgment of the district court should be reversed.

March 18, 2016

Respectfully submitted,

GREGORY R. NEVINS* LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 730 Peachtree Street NE, Suite 1070 Atlanta, Georgia 30308 (404) 897-1880 gnevins@lambdalegal.org * Admission pending.

/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005 (212) 809-8585 ogonzalez-pagan@lambdalegal.org

MICHAEL D.B. KAVEY LGBTQ RIGHTS CLINIC WASHINGTON SQ. LEGAL SERVICES, INC. NYU SCHOOL OF LAW 245 Sullivan Street, 5th Floor New York, New York 10012 (917) 623-8884 mk5306@nyu.edu
Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

31

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(a)(7)(B), the brief contains 6,993 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(a)(7)(C)(i), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate.

March 18, 2016

/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005 (212) 809-8585 ogonzalez-pagan@lambdalegal.org

CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing Brief with the Clerk of the United States Court of Appeals for the Second Circuit via the CM/ECF system this 18th day of March, 2016. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

March 18, 2016

/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005 (212) 809-8585 ogonzalez-pagan@lambdalegal.org

 
 15-3775-cv

United States Court of Appeals
For the Second Circuit

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.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION; NEW YORK CIVIL LIBERTIES UNION; 9to5, NATIONAL ASSOCIATION OF WORKING WOMEN;
A BETTER BALANCE; COALITION OF LABOR UNION WOMEN; EQUAL RIGHTS ADVOCATES; GENDER JUSTICE; LEGAL VOICE; NATIONAL WOMEN’S LAW CENTER; SOUTHWEST WOMEN’S LAW CENTER; WOMEN EMPLOYED; WOMEN’S LAW CENTER OF MARYLAND; and WOMEN’S LAW PROJECT IN SUPPORT OF PLAINTIFFS-APPELLANTS MELISSA ZARDA and WILLIAM ALLEN MOORE, JR.

LENORA M. LAPIDUS GILLIAN L. THOMAS Women’s Rights Project RIA TABACCO MAR LESLIE COOPER Lesbian Gay Bisexual Transgender
& HIV Project American Civil Liberties Union Foundation 125 Broad Street New York, N.Y. 10004 (212) 549-2500

ERIN BETH HARRIST ROBERT HODGSON CHRISTOPHER DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned counsel of record certifies that none of the amici curiae is a nongovernmental entity with a parent corporation or a publicly held corporation that owns 10% or more of its stock. This representation is made in order that the judges of this Court may evaluate possible disqualification or recusal.

Dated: March 18, 2016

s/ Erin Beth Harrist ERIN BETH HARRIST New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 eharrist@nyclu.org
Attorney for Amici Curiae

i

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF AUTHORITIES ................................................................................... iii
SUMMARY OF THE ARGUMENT ........................................................................1
INTERESTS OF AMICI CURIAE .............................................................................3
ARGUMENT .............................................................................................................4
I. Since Title VII’s enactment, courts consistently have adopted an expansive interpretation of what constitutes discrimination “because of sex.” .............................................................................................4
II. Title VII’s prohibition against sex discrimination protects all employees, including lesbian, gay, and bisexual people...............................14
A. Discrimination because of sexual orientation is sex discrimination under the plain meaning of the term “sex.” ................15
B. Discrimination because of sexual orientation involves impermissible sex-role stereotyping. ..................................................17
C. Discrimination against people who have same-sex relationships is associational discrimination. ...........................................................20
III. Simonton should be reconsidered in light of the Supreme Court’s expansive interpretation of what constitutes discrimination “because of sex” as well as the recent EEOC ruling.....................................22
CONCLUSION ........................................................................................................27
CERTIFICATE OF COMPLIANCE.......................................................................28
CERTIFICATE OF SERVICE ................................................................................29
APPENDIX: INTERESTS OF AMICI CURIAE .................................................. A-1
ii

TABLE OF AUTHORITIES
Cases
Am. Newspaper Publishers Ass’n v. Alexander, 294 F. Supp. 1100 (D.D.C. 1969)....................................................................7
AT&T Corp. v. Hulteen, 556 U.S. 701 (2009).......................................................................................10
Barnes v. Train, No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974)..................................12
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)............................................................20
Christiansen v. Omnicom Group, Inc., No. 15 Civ. 3440, 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016).....................26
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978).........................................................................................6
Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161 (D. Ariz. 1975) ............................................................12, 13
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ....................................................................24, 25
DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986) ....................................................................22, 23
Deneffe v. SkyWest, Inc., No. 14-cv-00348-MEH, 2015 WL 2265373 (D. Colo. May 11, 2015) ........19
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) ...........................................................................8
Dothard v. Rawlinson, 433 U.S. 321 (1977).........................................................................................9
iii

Foray v. Bell Atlantic, 56 F. Supp. 2d 327 (S.D.N.Y. 1999) .......................................................16, 21
General Electric Co. v. Gilbert, 429 U.S. 125 (1976).......................................................................................10
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .....................................................................23
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................................................ 17
Griggs v. Duke Power Co., 401 U.S. 424 (1971).........................................................................................9
Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ................19
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) ..............................................................20
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) ....................................................................20, 21
In re Levenson, 560 F.3d 1145 (9th Cir. 2009) .......................................................................16
Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)...................................................................................9, 10
Jefferies v. Harris Co. Cmty. Action Ass’n, 693 F.2d 589 (5th Cir. 1982) .........................................................................11
Jernigan v. Crane, 64 F. Supp. 3d 1260 (E.D. Ark. 2014) ..........................................................16
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ...........................................................17
iv

Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) .......................................................20
Lam v. Univ. of Hawai’i, 40 F.3d 1551 (1994) ......................................................................................11
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) .........................................................................16
Lawson v. Kelly, 58 F. Supp. 3d 923 (W.D. Mo. 2014)............................................................17
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)...................................................................................13, 14
Miller v. Bank of Am., 418 F. Supp. 233 (N.D. Cal. 1976)................................................................12
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977).......................................................................................10
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)...........................................................................10, 15, 24
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998)...................................................................................14, 24
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)...........................................................17
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).......................................................................................11
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)................................................................................passim
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 845 (D.S.D. 2014) .................................................................16
v

Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) .........................................................................8
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .....................................................................passim
Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) .........................................................................23
Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) .........................................................................23
Sprogis v. United Air Lines, Inc., 517 F.2d 387 (7th Cir. 1975) .........................................................................11
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).................................................................20
Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976).....................................................................12
Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984) .......................................................................23
Videckis v. Pepperdine Univ., 100 F. Supp. 3d 927 (C.D. Cal. 2015)...........................................................19
Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) ...........................................................................8
Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007) ...................................................................21
vi

Administrative Decisions, Guidance, and Materials
Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015) .......................................................................15, 18, 21
Complainant v. Johnson, EEOC Doc. 0120110576, 2014 WL 4407457 (EEOC Aug. 20, 2014) ............................................................................ 18-19
Cote v. Wal-Mart Stores E., LP, Final Determinatino, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015). ........................................................................................15, 21
Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012) ...................................................................................18
Veretto v. Donahoe, EEOC Doc. 0120110873, 2011 WL 2663401 (EEOC July 1, 2011)......................................................................................18
Rules, Statutes, and Regulations
29 C.F.R. Section 1604.11(a) (1980).......................................................................13
42 U.S.C. § 2000e-2...................................................................................................4
110 Cong. Rec. 2577-84 (1964).................................................................................4
U.S. Dep’t of Labor, Discrimination on the Basis of Sex, 80 Fed. Reg. 5246 (proposed Jan. 30, 2015) .................................................19
Miscellaneous Authorities
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307 (Apr. 2012)..............................................................5
vii

Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137 (1997)................................................5, 6
Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19 DUQUESNE L. REV. 453 (1981) ...................................................................5
Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, 49 J. S. HIST. 37 (Feb. 1983) ............................................................................6
viii

SUMMARY OF THE ARGUMENT This appeal presents the momentous issue of whether employers are free to discriminate against lesbian, gay, and bisexual people without running afoul of Title VII’s historic prohibition against discrimination “because of sex.” Decades of Supreme Court history make plain that Title VII’s prohibition against discrimination because of sex has become a robust source of protection for men and women workers alike. Initially, Title VII was used as a vehicle for striking down employer policies and practices that literally excluded women from employment opportunities. It soon became clear, however, that discrimination “because of sex” means much more than simply getting rid of “men only” signs (or, for that matter, “women only” signs). The Supreme Court has explained that sex discrimination occurs whenever an employer takes an employee’s sex into account when making an adverse employment decision. Courts have applied this principle to countless forms of employer bias, from cases involving a ban on hiring mothers of preschool-aged children to bias against Asian-American women to the failure to promote a Big Eight accounting firm partnership candidate because she was considered to be “macho.” Time and again, courts have refused to allow generalizations about men and women – or about certain types of men and women – to play any role in employment decisions.
1

This rich history of courts’ interpretations of Title VII, in addition to the reasons stated by Plaintiffs-Appellants, must be considered in understanding why discrimination against lesbian, gay, and bisexual employees is discrimination “because of sex.” Indeed, many of the rationales advanced to exclude lesbian, gay, and bisexual employees from Title VII’s protection were also made, and rejected, in cases involving equal opportunity for women. Employers who take sexual orientation into account necessarily take sex into account, because sexual orientation turns on one’s sex in relation to the sex of one’s partner. And bias against lesbian, gay, and bisexual people turns on the sex-role expectation that women should be attracted to only men (and not women) and vice versa. There is no principled reason to create an exception from Title VII for sex discrimination that involves sexual orientation, as the U.S. Equal Employment Opportunity Commission (“EEOC”) recognized in a landmark July 2015 ruling. A growing number of district courts agree.
This case presents an opportunity for the Court to correct its outdated and unworkable interpretation of the scope of Title VII’s prohibition of discrimination “because of sex.” In 2000, this Court held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that harassment on the basis of sexual orientation is not sex-based discrimination. Yet sex stereotyping, as defined by the Supreme Court, plainly encompasses discrimination on the basis of sexual orientation. Continued reliance
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on Simonton’s outdated categorical exclusion has led to cramped and illogical

attempts to distinguish between sex stereotyping that does not implicate sexual

orientation, which is clearly prohibited by Title VII, and sex stereotyping that

relates to the fact that an employee is lesbian, gay, or bisexual. This Court should

now hold, as other federal district courts and administrative agencies recently have

done, that there is no coherent line to be drawn between such forms of

discrimination and that sexual orientation discrimination is discrimination

“because of sex.”

INTERESTS OF AMICI CURIAE1

Amici are a coalition of thirteen civil rights groups and public interest

organizations committed to preventing, combating, and redressing sex

discrimination and protecting the equal rights of women in the United States.

More detailed statements of interest are contained in the accompanying appendix.

Amici have a vital interest in ensuring that Title VII’s promise of equal

employment opportunity effectively protects all people from invidious

discrimination “because of sex” and have filed this brief to address an issue of

importance in this case: the proper scope of Title VII’s application to

1 Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure and Local Rule 29.1, counsel for amici curiae state that no counsel for a party authored this brief in whole or in part, and that no person other than amici curiae, their members, or their counsel made a monetary contribution to the preparation or submission of this brief.

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discrimination against lesbian, gay, and bisexual employees. Amici take no

position on the other issues presented by this appeal.

ARGUMENT

I.

Since Title VII’s enactment, courts consistently have adopted an

expansive interpretation of what constitutes discrimination “because

of sex.”

This Court should revisit its decision in Simonton v. Runyon, 232 F.3d 33

(2d Cir. 2000), that discrimination on the basis of sexual orientation is not sex-

based discrimination prohibited by Title VII. In doing so, this Court should take

into account the Supreme Court’s expansive interpretation of the phrase “because

of sex” during the past fifty years, a trajectory that informed the EEOC’s recent

decision recognizing that sexual orientation discrimination violates Title VII.

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment

practice for an employer “to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s . . .

sex.” 42 U.S.C. § 2000e-2(a)(1). Unlike the prohibition against discrimination

because of race, the prohibition against discrimination because of sex was added to

the bill at the last minute, with a few hours of floor debate and without the benefit

of congressional hearings. 110 Cong. Rec. 2577-84 (1964).

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Since Title VII’s enactment, this sparse record sometimes has been invoked
as justification for limiting Title VII’s reach beyond removing barriers that
explicitly disadvantage women as compared to men.2 Indeed, many have
presumed that such distinctions were the only kind of discrimination “because of
sex” that concerned legislators in 1964. This interpretation is simply incorrect. As
one scholar has explained in a seminal law review article: “Contrary to what
courts have suggested, there was no consensus among legislators in the mid-1960s
that the determination of whether an employment practice discriminated on the
basis of sex could be made simply by asking whether an employer had divided
employees into two groups perfectly differentiated along biological sex lines.”
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125
HARV. L. REV. 1307, 1320, 1328 (Apr. 2012).3
2 Even the motivations of the sex amendment’s sponsor, Representative Howard Smith of Virginia, have been the subject of intense dispute among historians, including theories that he intended the addition as a joke or as a vehicle for scotching the entire bill, which he opposed. See, e.g., Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137, 139-42 (1997); Michael Evan Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for Comparable Worth, 19 DUQUESNE L. REV. 453, 458-59 (1981). But as one scholar has noted, whatever Smith’s “real” motivation, it is irrelevant; the reason(s) for introducing legislation may or may not bear any relation to the reason(s) the legislature enacts it. Id. at 462-67. 3 Commentators also have noted that supporters of the sex amendment were motivated not by concern for women vis a vis men, but for white women vis a vis
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Given this history, it was left to the courts to define what is meant by “because of sex.” Interpreting the plain meaning of these words, courts consistently have interpreted Title VII’s prohibition against sex discrimination to cover a wide range of employer assumptions about women and men alike. As the Supreme Court put it nearly forty years ago, “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted). Indeed, when examined in full, the halfcentury of precedent interpreting “sex discrimination” has dismantled not just distinctions between men and women, but also those among men and among women – distinctions that for generations had confined individuals to strict gender roles at work, as well as in society.
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court famously held that when an employer relies on sex stereotypes to deny employment opportunities, it unquestionably acts “because of sex.” There, the
Black women. That is, if Title VII included only race but not sex provisions, Black women would enjoy a level of protection in the workplace that white women would not. See, e.g., Bird, supra note 2, at 155-58; Carl M. Brauer, Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, 49 J. S. HIST. 37, 49-50 (Feb. 1983). These historical realities militate against, not in favor of, the crabbed analysis of Title VII embodied in Simonton and related decisions.
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Court considered the Title VII claim of Ann Hopkins, who was denied promotion to partner in a major accounting firm – despite having brought in the most business of the eighty-seven other (male) candidates – because she was deemed “macho.” Id. at 235. To be fit for promotion, Hopkins was told, she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have [her] hair styled, and wear jewelry.” Id.
As detailed in Part II.B, infra, Price Waterhouse confirms that employees who fail to conform to all manner of sex stereotypes are protected by Title VII’s sex provision, and the stereotype concerning to whom men and women “should” be romantically attracted is encompassed within this principle. But Ann Hopkins’s case was hardly the only instance in which an employer’s stereotype-based decision making was found to violate Title VII. Quite the opposite.
Among the earliest Title VII cases were those addressing – and disapproving of – the literal exclusion of women from particular employment opportunities. Prior to Title VII’s enactment, it had been routine for newspapers to separate “help wanted” advertisements into “male” and “female” sections, but the EEOC and courts found that practice illegal under the new law. See Am. Newspaper Publishers Ass’n v. Alexander, 294 F. Supp. 1100 (D.D.C. 1969). Employers’ segregation of job opportunities by sex was premised on assumptions about what work women and men can and want to do. Indeed, Title VII was enacted at a time
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when the workforce was divided into “women’s jobs” and “men’s jobs,” stemming largely from state “protective laws” restricting women’s access to historically male-dominated fields, but also from the resulting cultural attitudes about the sexes’ respective abilities and preferences. Just as sex-specific job listings were found to violate Title VII, so too were a variety of other policies and practices that had the purpose or effect of judging employees by their gender, not their qualifications.
By adopting a narrow approach to the bona fide occupational qualification (BFOQ) exception, for instance, courts assured that women and men alike would be assessed for jobs on individual merit, not group-based stereotypes. See, e.g., Rosenfeld v. S. Pac. Co., 444 F.2d 1219 (9th Cir. 1971) (striking down employer policy prohibiting women from becoming station agents due to job’s physical demands); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (finding airline’s women-only rule for flight attendants unlawful discrimination); Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) (prohibiting employer policy against women working as switchmen on grounds that job required heavy lifting).
Similarly, within a few years of these decisions, the Supreme Court ruled that physical criteria that disproportionately exclude women applicants violate Title VII unless justified by business necessity; employers could no longer merely
8

assume that “bigger is better” when it came to dangerous jobs. See Dothard v. Rawlinson, 433 U.S. 321 (1977) (unanimously extending disparate impact framework of Griggs v. Duke Power Co., 401 U.S. 424 (1971), to cover height and weight minimums for prison guards).4 The Court later relied on similar logic to invalidate an employer’s “fetal protection policy” that barred women, but not men, from jobs involving contact with lead – despite medical evidence showing that men faced equal if not worse reproductive hazards. Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991). Such a policy, said the Court, unlawfully presumed that women were more suited to motherhood than to the rigors, and dangers, of certain work: “It is no more appropriate for the courts than it is for the individual employers to decide whether a woman’s reproductive role is more
4 Although the Dothard Court upheld on BFOQ grounds Alabama’s exclusion of women from certain positions within maximum-security penitentiaries that required bodily contact with inmates, the Court emphasized that its decision should not be interpreted as endorsing an absolute male-only rule in all such jobs. Rather, the Court reiterated that the BFOQ exception was otherwise to be read narrowly; it was the harrowing conditions then prevailing in Alabama’s maximum-security facilities, which were under federal court order to come into compliance with the Eighth Amendment, that made this a special case. See 433 U.S. at 335 (“In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself.”).
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important to herself and her family than her economic role. Congress has left this
choice to the woman as hers to make.” Id. at 211.5
Although what little floor debate occurred prior to Title VII’s passage
focused on women’s second-class status in the workplace, the prohibition against
discrimination “because of sex” has long been understood to ban discrimination
against men as well. As the Supreme Court noted, “[p]roponents of the legislation
stressed throughout the debates that Congress had always intended to protect all
individuals from sex discrimination in employment.” Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983).
5 At the time Johnson Controls was decided, Title VII had been amended by the 1978 Pregnancy Discrimination Act (“PDA”). The PDA’s addition to the statute does not warrant the conclusion that Title VII’s sex provision, as originally enacted, did not encompass pregnancy discrimination, or that the law otherwise was incomplete in its substantive reach. Rather, the PDA was enacted in response to the Supreme Court’s widely-disparaged ruling in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), in which it found that the exclusion of pregnancy from a company’s disability benefits plan did not favor men over women, but rather, differentiated between pregnant and non-pregnant persons. Gilbert was nearly universally considered a misreading of Title VII; at the time it was decided, the EEOC, as well as all of the courts of appeals that had considered the issue, had declared pregnancy discrimination to be unlawful sex discrimination. See AT&T Corp. v. Hulteen, 556 U.S. 701, 717-18 (2009) (Ginsburg, J., dissenting). Indeed, just one year after Gilbert (and before passage of the PDA), the Supreme Court found discrimination on the basis of pregnancy to be discrimination “because of sex” when it struck down a municipal employer’s policy of erasing women’s seniority while they were out on maternity leave. Nashville Gas Co. v. Satty, 434 U.S. 136, 142-43 (1977).
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In addition to protecting male employees, Title VII also has been read repeatedly to forbid discrimination against subsets of employees, resulting in a broad definition of sex discrimination that acknowledges the diversity of employees’ identities – and the equally diverse forms of sex-based bias to which they may be subjected. See, e.g., Lam v. Univ. of Hawai’i, 40 F.3d 1551 (1994) (Asian-American woman’s Title VII sex discrimination claim viable despite evidence that white women comparators were not subjected to discrimination); Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam) (invalidating employer’s ban on hiring mothers of preschool-aged children, despite overall high rates of women’s employment); Jefferies v. Harris Co. Cmty. Action Ass’n, 693 F.2d 589 (5th Cir. 1982) (Black woman could bring Title VII claim despite evidence that employer treated white female comparators favorably); Sprogis v. United Air Lines, Inc., 517 F.2d 387 (7th Cir. 1975) (airline’s policy of employing only unmarried female flight attendants violated Title VII).
The initial rejection and later recognition of sexual harassment as sex discrimination offers another useful lens into courts’ ever-widening understanding of what constitutes discrimination “because of sex.” Although courts understood by the early 1970s that using racial epithets or displaying racist symbols like nooses was harassment “because of race” that violated Title VII, they were slower to see sexual harassment as harassment “because of sex.” Instead, judges routinely
11

wrote off adverse employment actions against women who had spurned their supervisors’ advances as “controvers[ies] underpinned by the subtleties of an inharmonious personal relationship.” Barnes v. Train, No. 1828-73, 1974 WL 10628, at *1 (D.D.C. Aug. 9, 1974) (emphasis added), rev’d sub nom Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); see also Miller v. Bank of Am., 418 F. Supp. 233, 236 (N.D. Cal. 1976) (sexual harassment could not be discrimination “because of sex” because “[t]he attraction of males to females and females to males is a natural sex phenomenon”), rev’d, 600 F.2d 211 (9th Cir. 1979); Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (Title VII not meant to provide a remedy “for what amounts to physical attack motivated by sexual desire . . . which happened to occur in a corporate corridor rather than a back alley”), rev’d, 568 F.2d 1044 (3d Cir. 1977); Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161, 163 (D. Ariz. 1975) (supervisor’s sexual harassment was motivated not by plaintiff’s sex but by a “personal proclivity, peculiarity or mannerism”), rev’d, 562 F.2d 55 (9th Cir. 1977).
Notably, these courts buttressed their narrow readings of Title VII by referencing the limited debate that preceded Congress’s addition of the sex provision. See Miller, 418 F. Supp. at 235-36 (the “Congressional Record fails to reveal any specific discussions as to the amendment’s intended scope or impact”); Tomkins, 422 F. Supp. at 556-57 (sexual harassment “clear[ly] . . . without the
12

scope of the Act,” because otherwise “we would need 4,000 federal trial judges instead of some 400”); Corne, 390 F. Supp. at 163 (given the “little legislative history surrounding the addition of the word ‘sex’ to the employment discrimination provisions of Title VII,” it would “be ludicrous to hold that the sort of activity involved here was contemplated by the Act”).
The jurisprudential tide began to turn in the late 1970s (as evidenced in part by the appellate reversals of the above-cited decisions), and in 1980 the EEOC updated its Guidelines on Discrimination Because of Sex to declare that sexual harassment of a female employee could not be disentangled from her sex. 29 C.F.R. Section 1604.11(a) (1980). The 1980 Guidelines recognized that it is not “personal” to disadvantage a female employee because of her supervisor’s sexual conduct toward her; it is illegal.
The Supreme Court continued this evolution in 1986, when it ruled that severe or pervasive conduct that creates a sexually hostile work environment violates Title VII by altering the “terms, conditions, and privileges” of employment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). But the Vinson Court took it as a given that sexual harassment was sex discrimination; its analysis centered on whether a plaintiff’s “voluntary” acquiescence to sexual demands and her failure to lodge a formal complaint negated her Title VII claim. As the Court put it, “Without question, when a supervisor sexually harasses a
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subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Id. at 64 (emphasis added). Indeed, the bank had not contested that principle in its filings, either. Id.
Roughly a decade later, the Court extended Vinson – unanimously – to encompass same-sex sexual harassment. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79-80 (1998). In so doing, the Oncale Court rejected various attempts to define sexual harassment narrowly. For example, the Court declined to hold that whether an employee is the victim of sex (or race) discrimination turns on the sex (or race) of the harasser. Id. at 78-79. The Court likewise did away with the argument that sexual harassment must be motivated by sexual desire to be actionable under Title VII. Id. at 80-81. Rather, the Court adopted perhaps the simplest test for whether discrimination had occurred: whether the conduct at issue met Title VII’s “statutory requirements,” i.e., whether the harassment occurred because of the employee’s sex. Id. at 80. The same test applies to discrimination against lesbian, gay, and bisexual employees, for the reasons explained below. II. Title VII’s prohibition against sex discrimination protects all employees,
including lesbian, gay, and bisexual people. As a remedial statute, and as illustrated by the foregoing decisions, Title VII does not prohibit only discrimination by men against women. Oncale, 523 U.S. at 78. Rather, the statute protects “all individuals” from differential treatment
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because of their sex. Newport News, 462 U.S. at 681. This includes lesbian, gay, and bisexual individuals, as the EEOC recognized recently in a July 2015 ruling.
A. Discrimination because of sexual orientation is sex discrimination under the plain meaning of the term “sex.”
Discrimination on the basis of sexual orientation is sex discrimination under the plain meaning of the term, because sexual orientation turns on one’s sex in relation to the sex of one’s partner. Consideration of an employee’s sexual orientation therefore necessarily involves consideration of the employee’s sex, as the EEOC recently held. Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015).
That discrimination because of sexual orientation involves impermissible consideration of sex is particularly apparent in the employee benefits context. When an employer refuses to provide insurance coverage to an employee’s samesex spouse, but would provide such benefits to a different-sex spouse, the employment benefit depends on the sex of the employee. For example, a female employee who is denied fringe benefits because she is married to a woman experiences sex discrimination, because she would be provided those benefits if she were a man married to a woman. See Final Determination, Cote v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015), http://www.glad.org/uploads/docs/cases/cote-v-walmart/cote-v-walmart-probablecause-notice.pdf. In addition to the EEOC, several federal courts have reached the
15

same conclusion in analogous contexts. For example, in Foray v. Bell Atlantic, the court recognized that a male plaintiff could advance a sex discrimination theory based on the denial of benefits to his same-sex partner. See 56 F. Supp. 2d 327, 329-30 (S.D.N.Y. 1999) (recognizing sex discrimination theory under Title VII and the Equal Pay Act “because all things being equal, if [plaintiff’s] gender were female, he would be entitled to claim his domestic partner as an eligible dependent under the benefits plan” but dismissing both claims because plaintiff and his partner were not similarly situated to married couples); see also In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009) (holding that denial of benefits for same-sex spouse of federal public defender constituted discrimination on the basis of sex or sexual orientation).
Numerous federal courts have concluded that sexual orientation discrimination is sex discrimination in cases seeking the freedom to marry for same-sex couples. As Judge Berzon recognized, the Equal Protection Clause forbids marriage bans for same-sex couples as a form of impermissible sex discrimination, because “[o]nly women may marry men, and only men may marry women.” Latta v. Otter, 771 F.3d 456, 480 (9th Cir. 2014) (Berzon, J., concurring); see also Jernigan v. Crane, 64 F. Supp. 3d 1260, 1286-87 (E.D. Ark. 2014), aff’d on other grounds, 796 F.3d 976 (8th Cir. 2015); Rosenbrahn v. Daugaard, 61 F. Supp. 3d 845, 859-60 (D.S.D. 2014), aff’d on other grounds, 799
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F.3d 918 (8th Cir. 2015); Lawson v. Kelly, 58 F. Supp. 3d 923, 934 (W.D. Mo. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), aff’d on other grounds, 755 F.3d 1193 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010), appeal dismissed sub nom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013); cf. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, [the Defense of Marriage Act (“DOMA”)] would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”), initial hearing en banc denied, 680 F.3d 1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013). This reasoning applies with equal force to Title VII as it does to the Equal Protection Clause.
B. Discrimination because of sexual orientation involves impermissible sex-role stereotyping.
As the Supreme Court recognized in Price Waterhouse, the prohibition against discrimination “because of sex” is not limited to discrimination based on the fact that an individual is male or female, but also discrimination based on other aspects of a person’s sex, such as gender expression and conformity (or lack of conformity) with social gender roles. 490 U.S. at 250 (employers discriminate “because of sex” when they rely on sex-specific stereotypical beliefs, such as the
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notion that “a woman cannot be aggressive, or that she must not be”); id. at 256 (“[I]f an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”); see also Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995, at *6 (EEOC Apr. 20, 2012) (Title VII prohibits discrimination based “not only on a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity”).
While discrimination because of sexual orientation often is accompanied by explicit evidence of disparate treatment because of an individual’s failure to conform with gender stereotypes about dress and appearance, it need not be to constitute sex discrimination. See Baldwin, 2015 WL 4397641, at *7-8. Since 2011, the EEOC has recognized that discrimination against lesbian, gay, and bisexual employees is unlawful to the extent that it turns on the sex-role expectation that women should be attracted to only men (and not women), and that men should be attracted to only women (and not men). See Veretto v. Donahoe, EEOC Doc. 0120110873, 2011 WL 2663401, at *3 (EEOC July 1, 2011) (Title VII prohibits adverse employment action “motivated by the sexual stereotype that marrying a woman is an essential part of being a man”); see also Complainant v.
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Johnson, EEOC Doc. 0120110576, 2014 WL 4407457, at *7 (EEOC Aug. 20, 2014) (collecting cases).6
Because nonconformity with sex-role expectations is the very quality that defines lesbian, gay, and bisexual people, federal district courts likewise have begun to recognize that discrimination against members of those groups is a form of sex stereotyping without requiring additional evidence of gender nonconformity. See, e.g., Videckis v. Pepperdine Univ., No. CV 15-00298 DDP, 2015 WL 1735191, at *8 (C.D. Cal. Apr. 16, 2015) (“[A] policy that female basketball players could only be in relationships with males inherently would seem to discriminate on the basis of gender.”); Deneffe v. SkyWest, Inc., No. 14-cv-00348MEH, 2015 WL 2265373, at *6 (D. Colo. May 11, 2015) (denying motion to dismiss where plaintiff alleged that he failed to conform to male stereotypes by designating his same-sex partner as beneficiary); Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014) (denying motion to dismiss where plaintiff alleged that “he (as a male who married a male) was treated differently in comparison to his female coworkers who also married
6 More recently, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs promulgated a proposed rule that would codify this reasoning and provide that federal contractors must not make employment decisions because an employee “does not conform to sex-role expectations by being in a relationship with a person of the same sex.” U.S. Dep’t of Labor, Discrimination on the Basis of Sex, 80 Fed. Reg. 5246, 5279 (proposed Jan. 30, 2015) (to be codified at 41 C.F.R. pt. 60-20).
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males”); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (denying motion to dismiss where “Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles’”); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012) (finding genuine issue of material fact under sex stereotyping theory where plaintiff failed to conform by taking his same-sex spouse’s surname after marriage); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (finding genuine issue of material fact under sex stereotyping theory where female plaintiff failed to conform by being attracted to and dating other women and not only men); see also Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”).
C. Discrimination against people who have same-sex relationships is associational discrimination.
This Court first recognized that associational discrimination violates Title VII in Holcomb v. Iona College, which involved a white man who alleged he was fired in part because of his interracial marriage to a Black woman. 521 F.3d 130 (2d Cir. 2008). “The reason is simple: where an employee is subjected to adverse
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action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139.
The same standard, and the same reasoning, apply to discrimination against an employee because he or she is in a relationship with a person of the same sex. See Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 (2d Cir. 2007) (noting that this Court “appl[ies] the same standard to both race-based and sex-based hostile work environment claims”); Baldwin, 2015 WL 4397641, at *6-7. The employer’s disapproval of same-sex relationships depends on the employee’s sex: If the employee were of a different sex, he or she would not be in a same-sex relationship and, therefore, would not be subject to the employer’s adverse action. Cf. Foray, 56 F. Supp. 2d at 329-30 (“[A]ll things being equal, if [plaintiff’s] gender were female, he would be entitled to claim his domestic partner as an eligible dependent under the benefits plan. . . .”); Final Determination, Cote v. Wal-Mart Stores E., LP, EEOC Charge No. 523-2014-00916 (Jan. 29, 2015), http://www.glad.org/uploads/docs/cases/cote-v-walmart/cote-v-walmart-probablecause-notice.pdf (a female employee is “subjected to employment discrimination [where] she was treated differently and denied benefits because of her sex, since such coverage would be provided if she were a woman married to a man”).
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III. Simonton should be reconsidered in light of the Supreme Court’s expansive interpretation of what constitutes discrimination “because of sex” as well as the recent EEOC ruling. Simonton was wrongly decided because it ignored the meaning of sex
discrimination discussed above. This Court should now revisit that decision in light of the history of Title VII jurisprudence described above and the EEOC’s recent ruling recognizing that sexual orientation discrimination is necessarily sex discrimination within the meaning of Title VII.
This Court first held that Title VII does not prohibit sexual orientation discrimination in Simonton v. Runyon, a case brought by a postal worker who claimed he was subjected to an abusive and hostile work environment because he was gay. 232 F.3d 33. Simonton, in turn, relied in part on DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), a decision that did not involve sexual orientation discrimination at all. Rather, DeCintio involved male plaintiffs who were passed over for a promotion in favor of a woman who was involved in a romantic relationship with the man who supervised both her and the plaintiffs. Id. at 305. In ruling that the male applicants did not have a Title VII claim, this Court observed that “[s]ex, when read in this context, logically could only refer to membership in a class delineated by gender, and not to sexual affiliation.” Id. at 306.
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Simonton relied on this language from DeCintio to rule that Title VII does not proscribe discrimination based on sexual orientation, 232 F.3d at 36, but its reliance was misplaced. First, the language was taken out of context; the “sexual affiliation” at issue was the male employer’s romantic relationship with a woman. More significantly, it was inconsistent with Price Waterhouse, in which the Supreme Court held that sex means more than the fact of being a man or a woman and encompasses the full range of gender expression in the workplace. See supra Part II.B. What is more, the language relied on in DeCintio was derived from cases from other circuits, see 807 F.2d at 307 (citing Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982)), whose reasoning has now been soundly rejected. “[F]ederal courts have recognized with near-total uniformity that ‘the approach in . . . Ulane[] and Sommers” was “‘eviscerated’ by the decision in Price Waterhouse.” Glenn v. Brumby, 663 F.3d 1312, 1318 n.5 (11th Cir. 2011) (quoting Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004)).
This Court in Simonton also gave great weight to the fact that Congress has refused to amend Title VII to prohibit explicitly discrimination because of sexual orientation. As an initial matter, congressional failure to act could just as easily establish the opposite conclusion: that amendment of the statute was unnecessary because sexual orientation discrimination already is covered by the prohibition
23

against discrimination because of sex. In any event, the Supreme Court in Oncale squarely rejected the notion that legislative intent could limit the forms of sex discrimination prohibited by Title VII. 523 U.S. at 79-80. The Court has made clear that the full scope of Title VII’s protections should not be determined solely by reference to the kinds of discrimination that were evident to legislators in 1964. As Justice Scalia observed, the mere fact that a particular strain of bias was “not the principal evil Congress was concerned with when it enacted Title VII” does not end the analysis: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79 (finding same-sex sexual harassment to be actionable sex discrimination under Title VII); see also Newport News, 462 U.S. at 679-81 (rejecting the argument that some of Title VII’s protections apply only to women and not to men, despite the fact that the prohibition against sex discrimination was intended to combat discrimination against women). Just as there is no exception to Title VII for same-sex sexual harassment, see Oncale, 523 U.S. at 79, there is no exception for lesbian, gay, or bisexual people either.
This Court’s only other precedential case addressing sexual orientation discrimination is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In Dawson, the plaintiff alleged that her employer, a hair salon, did not promote her
24

to stylist because she was a lesbian who did not conform to gender stereotypes about femininity. Id. at 213-16. The Dawson Court noted that the plaintiff asserted a gender stereotyping claim and recognized that “[w]hen utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” Id. at 218. Despite recognizing that sexual orientation necessarily implicates sex, this Court nevertheless cited Simonton for the proposition that “a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.” Id.
The Court’s discussion regarding “bootstrapping” reveals the tension between the categorical rejection of sexual orientation claims, on the one hand, with the expansive definition of sex discrimination adopted in Price Waterhouse, on the other. This artificial distinction created a trap whereby an “avowedly homosexual” plaintiff is excluded from Title VII protections, but a heterosexual plaintiff who is perceived to be lesbian, gay, or bisexual is not. As recognized recently by a district court in the Southern District of New York, “[t]he lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be
25

drawn between these two sorts of claims.” Christiansen v. Omnicom Group, Inc., No. 15 Civ. 3440, 2016 WL 951581, at *14 (S.D.N.Y. Mar. 9, 2016) (noting the perverse practical effect of Simonton and observing that “[t]he inevitable result of holding that some sexual stereotypes give rise to cognizable Title VII claims, while others – namely those involving sexual orientation – do not, has been an invitation to the precise bootstrapping that the Simonton Court intended to avoid”).
This Court should no longer adhere to pre-Price Waterhouse precedent and reasoning. Instead, this Court should apply the principles mandated by the Supreme Court to determine whether sexual orientation claims are covered by Title VII. For the reasons discussed above, applying those principles leads to the conclusion that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII.
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CONCLUSION This Court should hold that sexual orientation discrimination is sex discrimination prohibited by Title VII.

Dated: March 18, 2016

Respectfully submitted,

LENORA M. LAPIDUS GILLIAN L. THOMAS Women’s Rights Project LESLIE COOPER RIA TABACCO MAR Lesbian Gay Bisexual Transgender
& HIV Project American Civil Liberties Union
Foundation 125 Broad Street New York, NY 10004 (212) 549-2500
s/ Erin Beth Harrist ERIN BETH HARRIST ROBERT HODGSON CHRISTOPHER DUNN New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 eharrist@nyclu.org
Attorneys for Amici Curiae

27

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,284 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman type style.

Dated: March 18, 2016

s/ Erin Beth Harrist ERIN BETH HARRIST New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 eharrist@nyclu.org
Attorney for Amici Curiae

28

CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS I hereby certify that on March 18, 2016, I electronically filed the foregoing Brief of Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5, National Association of Working Women; A Better Balance; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Voice; National Women’s Law Center; Southwest Women’s Law Center; Women Employed; Women’s Law Center of Maryland; and Women’s Law Project in Support of Plaintiffs-Appellants Melissa Zarda and William Allen Moore, Jr., with the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Erin Beth Harrist ERIN BETH HARRIST New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 eharrist@nyclu.org Attorney for Amici Curiae
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APPENDIX: INTERESTS OF AMICI CURIAE The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan organization with over 500,000 members dedicated to defending the principles embodied in the Constitution and our nation’s civil rights laws. The New York Civil Liberties Union (NYCLU) is a nonprofit, nonpartisan organization with approximately 50,000 members founded in 1951 to protect and advance civil rights in New York. The NYCLU has long fought to ensure that lesbian, gay, bisexual, and transgender New Yorkers are treated equally and fairly under New York and federal law. 9to5, National Association of Working Women is a 43-year-old national membership organization of women in low-wage jobs dedicated to achieving economic justice and ending discrimination. Our membership includes lesbian and bisexual women and transgender individuals. Our members and constituents are directly affected by workplace discrimination and poverty, among other issues. 9to5 is committed to equity and inclusion, and to combating all forms of oppression. We have actively supported local, state and federal policy efforts to prohibit discrimination based on sexual orientation, gender identity and gender expression in the workplace, in the legal system, in educational institutions, in public programs, and in family rights. The outcome of this case will directly affect
A-1

our members’ and constituents’ rights and economic well-being, and that of their families.
A Better Balance is a national legal advocacy organization dedicated to promoting fairness in the workplace and helping employees meet the conflicting demands of work and family. Through its legal clinic, A Better Balance provides direct services to low-income workers on a range of issues, including employment discrimination based on pregnancy and/or caregiver status. A Better Balance is also working to combat LGBTQ employment nondiscrimination through its national LGBT Work-Family project. The workers we serve, who are often struggling to care for their families while holding down a job, are particularly vulnerable to retaliation that discourages them from complaining about illegal discrimination.
The Coalition of Labor Union Women is a national membership organization based in Washington, DC with chapters throughout the country. Founded in 1974 it is the national women’s organization within the labor movement which is leading the effort to empower women in the workplace, advance women in their unions, encourage political and legislative involvement, organize women workers into unions and promote policies that support women and working families. During our history we have fought against discrimination in all
A-2

its forms, particularly when it stands as a barrier to employment or is evidenced by unequal treatment in the workplace or unequal pay.
Equal Rights Advocates is a national non-profit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Since its founding in 1974, ERA has sought to end gender discrimination in employment and education and advance equal opportunity for all by litigating historically significant cases in both state and federal courts, including two of the first U.S. Supreme Court cases addressing Title VII’s prohibition of discrimination “because of sex” and its application to pregnant workers, Geduldig v. Aiello, 417 U.S. 484 (1974) and Richmond Unified Sch. Dist. v. Berg, 434 U.S. 158 (1977). ERA has participated as amicus curiae in scores of cases involving the interpretation of Title VII and other anti-discrimination laws, including Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); and Ledbetter v. Goodyear, 550 U.S. 618 (2007). Because ERA recognizes that sex discrimination often is justified by or based on stereotypes and biased assumptions about the roles that women and men can or should play in the public and private sphere, we have supported the recognition and application of these laws and the constitutional principles of equal protection and due process to gay, lesbian, bisexual, and transgender persons in amicus briefs
A-3

filed in numerous cases, including Obergefell v. Hodges, 135 S. Ct. 2584 (2015), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
Gender Justice is a nonprofit advocacy organization based in the Midwest that works to eliminate gender barriers based on sex, sexual orientation, gender identity, or gender expression. Gender Justice targets the root causes of gender discrimination, such as cognitive bias and stereotyping. We believe that courts should take an expansive, and inclusive, interpretation of what constitutes discrimination “because of sex.” Consistent with that view, we represent the transgender plaintiff in Rumble v. Fairview Health Services, No. 0:14-cv-02037SRN-FLN (D. Minn.), whose right to sue under the Affordable Care Act, Section 1557, was recognized by the court in 2015.
Legal Voice is a nonprofit public interest organization in the Pacific Northwest that works to advance the legal rights of women and girls through litigation, legislation, and public education on legal rights. Since its founding in 1978, Legal Voice has been at the forefront of efforts to combat sex discrimination in the workplace, in schools, and in public accommodations. We have served as counsel and as amicus curiae in numerous cases involving workplace gender discrimination throughout the Northwest and the country. Legal Voice serves as a regional expert advocating for legislation and for robust interpretation and enforcement of anti-discrimination laws to protect women and LGBTQ people.
A-4

Legal Voice has a strong interest in ensuring that Title VII is interpreted to cover sexual orientation.
The National Women’s Law Center is a nonprofit legal advocacy organization dedicated to the advancement and protection of women’s legal rights and opportunities since its founding in 1972. The Center focuses on issues of key importance to women and their families, including economic security, employment, education, health, and reproductive rights, with special attention to the needs of low-income women and women of color, and has participated as counsel or amicus curiae in a range of cases before the Supreme Court and the federal Courts of Appeals to secure the equal treatment of women under the law, including numerous cases addressing the scope of Title VII’s protection. The Center has long sought to ensure that rights and opportunities are not restricted for women or men on the basis of gender stereotypes and that all individuals enjoy the protection against such discrimination promised by federal law.
The Southwest Women’s Law Center is a non-profit policy and advocacy Law Center that was founded in 2005 with a focus on advancing opportunities for women and girls in the state of New Mexico. We work to ensure that women have equal access to quality, affordable healthcare, access to equal pay and that girls in middle and high school have equal access to sports’ programs. Our work strongly supports protections for individuals, without regard to sexual orientation as we
A-5

advocate to eliminate the full range of stereotypes and biases that women and LGBT individuals often face. Accordingly, the Law Center is uniquely qualified to comment on the decision in the Estate of Zarda v. Altitude Express.
Women Employed’s mission is to improve the economic status of women and remove barriers to economic equity. Since 1973, the organization has assisted thousands of working women with problems of discrimination and harassment, monitored the performance of equal opportunity enforcement agencies, and developed specific, detailed proposals for improving enforcement efforts, particularly on the systemic level. Women Employed believes that barring discrimination “because of sex” encompasses discrimination against an employee because of his/her sexual orientation because women’s rights and LGB rights are inextricable.
The Women’s Law Center of Maryland, Inc. (WLC) is a non-profit, membership organization established in 1971 with a mission of improving and protecting the legal rights of women, particularly regarding gender discrimination, employment law, family law and reproductive rights. Through its direct services and advocacy, the Women’s Law Center seeks to protect women’s legal rights and ensure equal access to resources and remedies under the law. The Women’s Law Center is participating as amicus curiae in this case because it agrees with the proposition that sex, gender, and sexual orientation are intrinsically intertwined,
A-6

particularly in the realm of discrimination. The concerns and struggles of the LGBTQ community impact all women, regardless of sexual orientation.
The Women’s Law Project (WLP) is a non-profit women’s legal advocacy organization with offices in Philadelphia and Pittsburgh, Pennsylvania. Founded in 1974, WLP’s mission is to create a more just and equitable society by advancing the rights and status of all women throughout their lives. To this end, we engage in high impact litigation, policy advocacy, and public education. For over forty years, WLP has challenged discrimination rooted in gender stereotyping and based on sex.
A-7

 
 Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page1 of 10
15-3775 Zarda v. Altitude Express
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016
(Argued: January 5, 2017 Decided: April 18, 2017) Docket No. 15-3775
- - - - - - - - - - - - - - - - - - - -x 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, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD,
Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x
Before: JACOBS, SACK, and LYNCH, Circuit Judges. Donald Zarda, a skydiver, sued his former employer in the United States District Court for the Eastern District of New York (Bianco, J.), asserting (inter alia) sexual-orientation discrimination in violation of New York state law and sex

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page2 of 10
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. The district court, relying on our decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on sexual orientation constituted discrimination based on sex for purposes of Title VII. The state-law claim for sexual-orientation discrimination went to trial where a jury found for the defendants. On appeal, Zarda argues that Simonton should be overturned. We do not entertain that argument because a panel of this Court could not overturn another panel’s decision. Moreover, we reject Zarda’s argument that he is entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes. Consequently, we AFFIRM the judgment of the district court in all respects.
GREGORY ANTOLLINO, New York, NY, for Appellants.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Appellants.
SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for Appellees.
Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson, and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5; National Association of Working Women; A Better Balance; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Voice; National Women’s Law Center;
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Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page3 of 10
Southwest Women’s Law Center; Women Employed; Women’s Law Center of Maryland; Women’s Law Project, in support of Plaintiffs-Appellants.
Michael D.B. Kavey, LGBTQ Rights Clinic, New York, NY; Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal, in support of Plaintiffs-Appellants.
PER CURIAM:
Plaintiff Donald Zarda, a skydiver, alleges that he was fired from his job as a skydiving instructor because of his sexual orientation.1 He sued his former employer, Altitude Express (doing business as Skydive Long Island) and its owner Raymond Maynard (collectively “Altitude Express”), asserting that he was discriminated against in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and New York law.2 The United States District Court for the Eastern District of New York (Bianco, J.), found a triable issue of fact as to whether Zarda faced discrimination because of his sexual orientation in violation of New York law, but otherwise granted summary judgment to Altitude Express on Zarda’s discrimination claims. In particular, the district court held that the defendants were entitled to summary judgment on Zarda’s Title VII claim because Second Circuit precedent holds that Title VII does
1 Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda and his estate’s executors are collectively referred to as “Zarda.”
2 Zarda also alleged violations of state and federal laws relating to overtime and minimum wage. Those claims are not before us on appeal.
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not protect against discrimination based on sexual orientation. At trial, the jury found for the defendants on Zarda’s state-law claims.
On appeal, Zarda requests that we reconsider our interpretation of Title VII in order to hold that Title VII’s prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation.” Since a three-judge panel of this Court lacks the power to overturn Circuit precedent, we decline Zarda’s invitation.
Separately, Zarda asserts that several errors infected the trial on his statelaw discrimination claim, warranting a new trial. Finding no abuse of discretion by the district court, we affirm the judgment in all respects.
I
In 2010, Rosanna Orellana and her boyfriend David Kengle went skydiving at Altitude Express. Each purchased tandem skydives, in which the instructor is tied to the back of the client so that the instructor can deploy the parachute and supervise the jump. Zarda was Orellana’s instructor.
At some point, Zarda informed Orellana that he was homosexual and he had recently experienced a break-up. Zarda often informed female clients of his sexual orientation--especially when they were accompanied by a husband or boyfriend--in order to mitigate any awkwardness that might arise from the fact that he was strapped tightly to the woman.
When Orellana and Kengle compared notes on their respective skydives, and Kengle learned that Zarda had disclosed his sexual orientation, Kengle called Altitude Express to complain about Zarda’s behavior. Zarda was fired shortly thereafter. Predictably, the parties dispute why Zarda was terminated. Altitude Express observes that Orellana had various complaints about Zarda’s behavior, and the company contends that Zarda was fired because he failed to provide an enjoyable experience for a customer. For his part, Zarda asserts that he acted appropriately at all times and was fired because of his sexuality: either because of
4

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his supervisor’s prejudice against homosexuals or because he informed a client about his sexuality.3
II
The district court determined that there was a genuine dispute of material fact regarding the reason for Zarda’s termination. However, the district court concluded that Zarda was entitled to a trial only with respect to his state-law cause of action. See N.Y. Exec. Law § 296(1)(a) (defining discrimination on the basis of sexual orientation as “an unlawful discriminatory practice”). Zarda’s Title VII claim, by contrast, was dismissed at summary judgment.
That outcome ultimately resulted from longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.” J. App’x at 30. Accordingly, the district court, granted summary judgment in favor of defendants without analyzing whether Zarda could rely on a “sex stereotype” that men should date women. Instead, the district court limited its analysis to the “sex stereotypes” alleged by Zarda, including “what you may wear or how you may behave.” Special App’x at 26. Determining that Zarda failed to establish the requisite proximity between his termination and his proffered instances of gender non-conformity (not including the fact that he dated other men), the district court granted summary judgment to defendants on Zarda’s Title VII claim.
3 Zarda alleged that another skydiving instructor had disclosed that he was heterosexual but was not punished.
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During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). Relying on Baldwin, Zarda moved the district court to reconsider its grant of summary judgment on his Title VII claim. The district court denied the motion, holding that Simonton was contrary to the EEOC’s decision, and that it barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII.
After his state-law sexual-orientation claim proceeded to trial and a jury found for the defendants, Zarda appealed.
III
Zarda asserts that Simonton’s holding that “Title VII does not proscribe discrimination because of sexual orientation” is incorrect and should be overturned. 232 F.3d at 36. As a threshold matter, Altitude Express contends that we need not consider this argument in light of the jury verdict in favor of the defendants on Zarda’s state-law discrimination claim. Essentially, Altitude Express argues that the scope of Title VII’s protections are irrelevant to Zarda’s appeal because the jury found that Altitude Express had not discriminated.
Altitude Express is incorrect; Zarda’s sex-discrimination claim is properly before us because the district court held him to a higher standard of causation than required by Title VII. Under Title VII, a plaintiff must demonstrate that sex “was a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision to take the [adverse employment] action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). Accordingly, to show causation for sex discrimination under Title VII, “[i]t suffices . . . to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013).
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Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page7 of 10
At trial, the district court instructed the jury that Zarda could prevail on his state-law sexual-orientation discrimination claim only if he could prove that “he would have continued to work for Altitude Express . . . except for the fact that he was gay.”4 J. App’x at 1771. In other words, the jury charge required Zarda to prove but-for causation, which is a higher standard of causation than is necessary for Title VII sex-discrimination claims. See Vega, 801 F.3d at 86 (“[A] plaintiff in a Title VII case need not allege ‘but-for’ causation.”).
If Zarda is correct that discrimination based on sexual orientation is equivalent to prohibited sex discrimination under Title VII, then he would have been entitled to a jury instruction on the less stringent “motivating-factor” test for causation. See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (indicating that an instruction that advises the jury on an erroneously high burden of proof warrants a new trial). It is entirely possible that a jury thought that Zarda’s sexual orientation was “one of the employer’s motives” (i.e. a “motivating factor”) in its termination decision, but was not a “but-for cause” of his firing. In sum, if Title VII protects against sexual-orientation discrimination, then Zarda would be entitled to a new trial.
Zarda’s request that we overturn Simonton is therefore not mooted by the jury verdict on his state-law claim. Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar, see United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004); cf. Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (in banc) (overturning, as an in banc court, prior Seventh Circuit precedent holding that Title VII did not prohibit discrimination based on sexual orientation).
In Christiansen, the panel nonetheless remanded to the district court after concluding that the plaintiff had stated a plausible claim of “gender
4 We express no view as to whether the district court correctly instructed the jury on New York law.
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Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page8 of 10
stereotyping,” which is actionable under Title VII. 2017 WL 1130183, at *4. That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal. Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation--a result foreclosed by Simonton.
IV
Zarda asserts that he is entitled to a new trial on his state-law, sexualorientation discrimination claim for several reasons. None has merit.
A
Evidentiary Rulings. Zarda contends that the district court improperly admitted two types of prejudicial evidence. He suggests that the probative value of the evidence was substantially outweighed by its resulting prejudice. See Fed. R. Evid. 403. We review the district court’s decision to admit this evidence for abuse of discretion. Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014).
Zarda contends that the district court improperly admitted evidence concerning an occasion, nine years earlier, on which Zarda had been terminated from Altitude Express. As an initial matter, Zarda does not clearly identify the evidence he believes was improperly admitted, or why it was prejudicial. In any event, as the district court observed, evidence relating to the circumstances of an employee’s previous termination is relevant to determining the circumstances of the same employee’s later termination. Zarda has not shown that any prejudice substantially outweighed the relevance of this evidence. Accordingly, we see no abuse of discretion.
The district court also admitted deposition testimony in which Zarda acknowledged that there was a (small) possibility that the cause of his termination in 2001 was his filing for Worker’s Compensation benefits. Assuming that this statement was prejudicial, any prejudice was negligible.
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Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page9 of 10
Zarda stated at deposition that Worker’s Compensation might have played no more than a minimal role in his firing; moreover, Zarda’s supervisor testified that he knew it would be illegal to fire someone for seeking Worker’s Compensation benefits, and that he did not fire Zarda for this reason.
B
Witness List. Zarda argues that the defendants hindered Zarda’s trial preparation by listing dozens more proposed witnesses in the parties’ joint pretrial order than the defendants intended to call. Zarda apparently argues that the district court should have precluded the defense witnesses from testifying, pursuant to Rules 26 and 37(c)(1) of the Federal Rules of Civil Procedure.
Even when Rule 37(c)(1) allows for witness preclusion, preclusion is not mandatory. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006). Here the district court had good reason to allow the testimony. The court found that the evidence was important, that Zarda had some notice regarding the potential testimony, and that there was no indication that the defendants had engaged in improper gamesmanship. We review a district court’s decision to preclude testimony based on Rule 37(c)(1) for abuse of discretion, and we see none here. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
C
Appeals to Prejudice. Zarda contends that defense counsel improperly influenced the jury by appealing to prejudice against homosexuals. On review, we consider whether the district court abused discretion by failing to grant relief. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Zarda is entitled to a new trial “only if [opposing] counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury.” Id. at 127 (quoting Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir. 1989)).
Although Zarda complains of several allegedly offensive remarks, the context of each comment suggests that the statements were not improper
9

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page10 of 10
references to stereotypes. For example, Zarda argues that counsel’s description of the relationship between Zarda and one of his witnesses as “odd” is prejudicial. However, the witness was testifying in support of Zarda’s claim for emotional damages, and defense counsel made this comment while trying to downplay the closeness of Zarda’s relationship with the witness in order to make the jury skeptical of the witness’s knowledge of Zarda’s emotional state. The district court held that the characterization of the relationship as “odd” was a fair argument that went to the credibility of the witness. Zarda has not shown that the district court’s ruling was an abuse of discretion or an “error[] . . . that w[as] ‘clearly prejudicial to the outcome of the trial;’” consequently, he is not entitled to a new trial. Marcic, 397 F.3d at 124 (quoting Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)).
CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.
10

Case 15-3775, Document 244-2, 04/18/2017, 2013376, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: April 18, 2017 Docket #: 15-3775cv Short Title: Zarda v. Altitude Express, Inc.

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 10-cv-4334 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Shields DC Judge: Bianco

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 15-3775, Document 244-3, 04/18/2017, 2013376, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: April 18, 2017 Docket #: 15-3775cv Short Title: Zarda v. Altitude Express, Inc.

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 10-cv-4334 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Shields DC Judge: Bianco

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________ respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________ and in favor of _________________________________________________________________________ for insertion in the mandate. Docketing Fee _____________________ Costs of printing appendix (necessary copies ______________ ) _____________________ Costs of printing brief (necessary copies ______________ ____) _____________________ Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

Case 15-3775, Document 244-4, 04/18/2017, 2013376, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: April 18, 2017 Docket #: 15-3775cv Short Title: Zarda v. Altitude Express, Inc.

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 10-cv-4334 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Shields DC Judge: Bianco

NOTICE OF DECISION
The court has issued a decision in the above-entitled case. It is available on the Court's website http://www.ca2.uscourts.gov.
Judgment was entered on April 18, 2017; and a mandate will later issue in accordance with FRAP 41.
If pursuant to FRAP Rule 39 (c) you are required to file an itemized and verified bill of costs you must do so, with proof of service, within 14 days after entry of judgment. The form, with instructions, is also available on Court's website.
Inquiries regarding this case may be directed to 212-857-8523.

 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD, Defendants-Appellees.
On Appeal from the U.S. District Court for the Eastern District of New York Hon. Joseph Bianco, Judge
PLAINTIFFS-APPELLANTS’ PETITION FOR REHEARING EN BANC

GREGORY ANTOLLINO, ESQ. GREGORY ANTOLLINO, ATTORNEY AT LAW 275 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397

STEPHEN BERGSTEIN BERGSTEIN & ULLRICH, LLP 5 Paradies Lane New Paltz, New York 12561 (845) 469-1277

Counsel for Plaintiffs-Appellants

TABLE OF CONTENTS THE ISSUE MERITING EN BANC CONSIDERATION ................................. 1 ARGUMENT........................................................................................................... 4
I. The Scope of Title VII’s Nondiscrimination Directive Is a Question of Exceptional Importance. ................................................................................ 4
II. En Banc Review Is Warranted. The Modern-Day Panel Reached a Result Dictated by Outmoded Precedents Holding that Sexual Orientation Is Not a Form of Sex Discrimination. ......................................................................... 6
III. This Is an Appropriate Case to Decide whether Title VII’s Prohibition Against Sex Discrimination Encompasses Sexual Orientation Discrimination. ............................................................................................ 11
IV. This Case Merits En Banc Review under this Court’s Standards. .............. 11 CONCLUSION ..................................................................................................... 16 CERTIFICATION UNDER F.R.A.P 32(g) ........................................................ 18 CERTIFICATE OF SERVICE ........................................................................... 19
ii

TABLE OF AUTHORITIES Cases Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) .. 3 Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 16,
2015)...................................................................................................................... 3 Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)................... 15 Boutillier v. Hartford Pub. Sch., No. 13-cv-1303, 2014 WL 4794527 (D. Conn.
Sept. 25, 2014)....................................................................................................... 6 City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) . 3, 9 EEOC v. Scott Med. Health Ctr., P.C., No. 16-cv-225, 2016 WL 6569233 (W.D.
Pa. Nov. 4, 2016) ................................................................................................... 6 Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973) ................................ 16 Estate of D.B. v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320
(N.D.N.Y. 2016) .................................................................................................. 16 Evans v. Georgia Regl. Hosp., 850 F.3d 1248 (11th Cir. 2017)............................... 7 Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) .................................... 3, 10, 14 Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015).................... 6 Landell v. Sorrell, 406 F.3d 159 (2d Cir. 2005) ..................................................... 16 Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015)................................................ 5 Maroney v. Waterbury Hosp., No. 10-CV-1415, 2011 WL 1085633 (D. Conn. Mar.
18, 2011).............................................................................................................. 16 Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) ................ 15 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)............................................ 2 Muntaqim v. Coombe, 385 F.3d 793 (2d Cir. 2004) ............................................... 16 Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ........ 3
iii

Ricci v. Destefano, 530 F.3d 88 (2d Cir. 2008) ...................................................... 16 Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014)......................................... 6 Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984)........................................... 3, 13 Vickers v. Fairfield Med. Ctr., 454 F.3d 756 (6th Cir. 2006). ................................ 15 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015);............. 6, 15 Watson v. Geren, 587 F.3d 156 (2d Cir. 2009) (per curiam) (en banc). ................. 13 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675
(2013). ................................................................................................................. 15 Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334 (N.D. Fla.
2016)...................................................................................................................... 6
Statutes Connecticut Fair Employment Practices Act, Conn. Code, 46(a)-60 ....................... 4 New York City Human Rights Law, N.Y.C. Admin. Code Article 8 ..................... 1 New York State Human Rights Law, N.Y. Exec. Law § 296............................. 4, 11 Title VII, Civil Rights Act of 1964 as amended, 42 U.S.C. §2000e et seq. .... passim Other Authorities Br. of Appellee, Windsor v. United States, No. 12-2435 (2d Cir. Aug. 31, 2012) . 15 Pet. for Rehearing En Banc, Evans v. Georgia Reg’l Hosp., 15-15234 (11th Cir.,
March 31, 2017) .................................................................................................. 14 Br. Petition for Hearing En Banc, Cargian v. Breitling USA, Inc., No. 16-3592 (2d
Cir. April 19, 2017) ............................................................................................. 13 Pet. for Hearing En Banc, Christiansen v. Omnicom, No. 16-748 (2d Cir. Apr. 28,
2017).................................................................................................................... 13 Irving R. Kaufman, Do the Costs of the En Banc Proceeding Outweigh Its
Advantages?, 69 Judicature 7 (1985) .................................................................. 13
iv

Ryan S. Owens and David S. Simon, “Explaining the Supreme Court's Shrinking Docket,\” 53 Wm. & Mary L. Rev. 1219, 1229 (2012)....................................... 20
Jon O. Newman, En Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365 (1984).............................................................................. 14
Zarda v. Altitude Express, 15-3775, Comments at Oral Arg. at 11:06, (Sack, J.), http://files.eqcf.org/cases/15-3775-oral-argument-audio/. ................................ 3, 5
Rules Fed. R. App. P. 32(a)(5)...................................................................................... 1, 18 Fed. R. App. P. 32(a)(6).......................................................................................... 18 Fed. R. App. P. 32(g) .............................................................................................. 18 Fed. R. App. P. 32(g)(1) ......................................................................................... 18 Fed. R. App. P. 35(b) ................................................................................................ 1 Fed. R. App. P. 35(b)(2) ......................................................................................... 18
v

THE ISSUE MERITING EN BANC CONSIDERATION
Plaintiffs-Appellants Melissa Zarda and William Allen Moore, Jr., Executors of the Estate of Donald Zarda (hereinafter “Zarda”) petition this Court under Rule 35(b) of the Federal Rules of Appellate Procedure for rehearing en banc of the Per Curiam decision dated April 18, 2017. See Zarda v. Altitude Express, --- F.3d ----, No. 15-3775, 2017 WL 1378932 (2d Cir. Apr. 18, 2017). A copy of the decision is attached as an Addendum and denoted by “Add.”
The full Court should decide whether Title VII’s bar on sex discrimination prohibits sexual orientation discrimination.” See 42 U.S.C. §2000e-2(a). The panel found itself constrained by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). The en banc Court should overrule both precedents; the plain meaning of the statute so requires. The Supreme Court has repeatedly held that Title VII “treats each of [its] enumerated categories exactly the same.” Price Waterhouse v. Hopkins, 490 U.S. 228, 244 n.9 (1989). This Court must fulfill its legal obligation to entertain all claims that meet the statutory requirements of Title VII that “sex-based considerations” not affect an employee’s treatment. Id. at 242.
First, the panel’s adherence to Simonton and Dawson conflicts with multiple decisions of this and the United States Supreme Court. Consideration by the full Circuit is therefore necessary to secure and maintain uniformity in the law.
1

In holding that Title VII allows the firing of men, but not women, who are attracted to men, (and vice versa) the panel relied on Simonton—a decision rejecting Title VII’s coverage of sexual orientation discrimination without addressing arguments supporting the conclusion that Title VII’s prohibition against sex discrimination encompasses anti-gay discrimination. See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring and describing these arguments as “persuasive,” “none previously addressed by this Court”). See also Add. 8 (relief for Zarda “foreclosed by Simonton”). The panel’s adherence to Simonton perpetuates a “longstanding tension in Title VII caselaw,” id. at 5; it also conflicts with: Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983); City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008); and Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).
Second, this case involves a question of exceptional importance: Whether— as the Seventh Circuit held en banc, as well as the agency charged with Title VII enforcement—the statute’s prohibition on sex discrimination protects all employees from adverse treatment that an employer would not have inflicted had they been of
2

a different sex. See Hively v. Ivy Tech Comm. College, 853 F.3d 339 (7th Cir. 2017) (en banc); Baldwin v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015). Reexamination of Simonton and Dawson—cases carving sexual orientation out of Title VII without a basis in the text—is warranted where a sister circuit went en banc, overruling similar precedents.1 Perhaps more importantly, it cannot escape notice that the Chief Judge of this Circuit has endorsed Baldwin’s principal arguments. With District Judge Margo Brodie joining him, Judge Katzmann concurred that a precedent dating from 2000, with so many societal changes hence, warrants reconsideration. See Christiansen, 852 F.3d at 207. See also, Zarda, Oral Arg. at 11:06 (Sacks, J.), available at http://files.eqcf.org/cases/15-3775-oralargument-audio/.
1 Hively also abrogated Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984), upon which Simonton relied, at least in part.
3

ARGUMENT
I. The Question of Title VII’s Nondiscrimination Directive, and Its Application to Sexual Orientation Is of Exceptional Importance.
There is increasing recognition among circuit and district judges that difficulties implicating the scope of “sex” under Title VII are of such exceptional importance, affecting the rights of thousands, that they warrant en banc consideration.2 Indeed, disposition of this petition would decide not only Zarda’s rights, but those of similar, countless others, currently without redress under Title VII; they may be freed from discrimination if this Court sends a clear message that sexual orientation bias is not just wrong, but textually unlawful.3
This Court’s caselaw removing lesbian, gay, and bisexual people from the entire spectrum of protections of sex-based discrimination provided by Title VII sharply contrasts with the upsurge of federal recognition “that discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively, 2017 WL 1230393, at *1. See also, Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F.
2 This Court has previously granted en banc review in cases involving issues of exceptional importance under federal employment nondiscrimination laws. See, e.g., Buckley v. Consolidated Edison Co., 155 F.3d 150 (2d Cir. 1998) (en banc). 3 “[T]itle VII affords greater financial relief, including attorneys’ fees, than the [New York State] Human Rights Law.” Margerum v. City of Buffalo, 24 N.Y.3d 721, 736 (2015). The same is true under Connecticut’s Fair Employment Practices Act. Tomick v. United Parcel Serv., Inc., 324 Conn. 470, 476 (2016).
4

Supp. 3d 1334 (N.D. Fla. 2016); EEOC v. Scott Med. Health Ctr., P.C., No. 16-cv225, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014); Boutillier v. Hartford Pub. Sch., No. 13-cv-1303, 2014 WL 4794527 (D. Conn. Sept. 25, 2014).
Judges on three circuit courts have now expressed views that Title VII’s bar on sex discrimination encompasses claims of sexual orientation discrimination. This growing consensus is a factor meriting full Court consideration. For one, here, Chief Judge Katzmann expressed his view that the entire Circuit should “revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.” Christiansen, 852 F.3d at 202. Judge Sack of this Court declared that “there is no question that this question is ripe for visitation.” Zarda, Oral Arg. at 11:06 (Sack, J.). (It bears repeating that Judges Katzmann and Sack comprised a majority of the Simonton panel.)
Likewise, the Seventh Circuit voted to grant en banc review of a panel decision compelled by existing precedent to hold Title VII inapplicable to sexual orientation discrimination. See Hively v. Ivy Tech Cmty. Coll. S. Bend, 830 F.3d 698 (7th Cir. 2016) (“In light of the importance of the issue . . . and to bring
5

our law into conformity with the Supreme Court's teachings, a majority of the judges in regular active service voted to rehear this case en banc.”). See also id. 2017 WL 1230393 *17 (“Any case heard by the full court is important. This one is momentous.”) (Sykes, J., dissenting). Finally, an Eleventh Circuit judge has urged her court to “rehear [a] case en banc”—one that adhered to existing precedent excluding lesbian, gay, and bisexual people from Title VII’s protection from sexbased discrimination, based on line from a 1979 holding. See Evans v. Georgia Regl. Hosp., 850 F.3d 1248, 1271 (11th Cir. 2017) (Rosenbaum, J., dissenting).
Thus, as recognized by many appellate judges—in three circuits within less than a year—this petition presents a question of exceptional importance meriting en banc consideration.
II. En Banc Review Is Warranted. The Modern-Day Panel Reached a Result Dictated by Precedents Dictating that Sexual Orientation Is Not a Form of Sex Discrimination.
In holding that Title VII’s sex discrimination prohibition does not cover sexual orientation, the panel held that Simonton foreclosed any such claim. Add. 8. Having concluded it lacked authority to overturn Simonton, Add. 7, it did not explore the reasons why sexual orientation discrimination is sex discrimination—namely because the former treats people of a certain sex differently, because of the individuals with whom they associate, and because gender stereotyping is a root of this form of sex bias. As such, the panel did not discuss Title VII, nor the multitude
6

of Supreme Court and Second Circuit precedents that verily abrogate Simonton and Dawson; as a result, it arrived at an outcome inconsistent with those precedents. This Court needs to reconcile these inconsistencies.
In his Christiansen concurrence, Chief Judge Katzmann expressed agreement with each of the three principal arguments presented by counsel, that sexual orientation discrimination violates Title VII’s ban on discrimination “because of . . . sex.” 852 F.3d at 202. In so doing, he urged the full Court to “consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII,” as “[n]either Simonton nor Dawson had occasion to consider these worthy approaches.” Id. at 207. He held as such because “three arguments” “reflect the evolving legal landscape since . . . Simonton . . . and Dawson” and because a faithful application of Oncale dictates that “there is ‘no justification in the statutory language . . . for a categorical rule excluding’” sexual orientation discrimination from Title VII. Id. at 202, 207.
Similarly, in the Hively en banc decision, the Seventh Circuit endorsed not only these arguments, see 2017 WL 1230393, at **5-7, but noted the flaw in contrary decisions emphasizing language not in the statute, rather than “the scope of language . . . already in the statute,” id. at *3 (emphasis added). Focusing on non-statutory considerations contravenes Oncale, where Justice Scalia, writing for a unanimous
7

Court, emphasized that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. at 79.
Chief Judge Katzmann found persuasive these arguments: First, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.” Christiansen, 852 F.3d at 202 (Katzmann, concurring). The Chief Judge then suggested a scenario wherein a man and a woman both put pictures of their respective husbands on their desks. To punish one, but not the other, fails Manhart’s “simple test” of sex discrimination, as well as Oncale’s test as to whether a person is “exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id. at 202 (citations and quotations omitted). Similarly, Hively ruled that where an employer fires a female employee because the employee is married to (or lives with or dates) a woman but would not fire a male for identical conduct with a woman, the employer has engaged in “paradigmatic sex discrimination.” 2017 WL 1230393, at *5. Second, sexual orientation discrimination is sex discrimination insofar as it treats comparable people differently because of sex, whether viewed apropos of the sex of the individuals with whom they associate (or to whom they are attracted). Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring). Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse, 490
8

U.S. at 244 n.9. Thus, “to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.” Hively, 2017 WL 1230393, at *7; id. at *16 (Flaum, J., concurring); Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring). Accordingly, Zarda’s adherence to Simonton creates an fundamental conflict with one of this Court’s formative Title VII cases: Holcomb, 521 F.3d 130, holding that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139 (emphasis in original).
Third, “sexual orientation discrimination is discrimination ‘because of . . . sex’ because such discrimination is inherently rooted in gender stereotypes.” Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring).4 Undeniably, an individual’s same-sex attraction “represents the ultimate case of” non-conformance to a sex “stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).” Hively, 2017 WL 1230393, at *5; see also Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring) (citation omitted). And both Chief Judge Katzmann and Hively
4 The Chief Judge emphasized how antigay bias fits within the concerns of prevailing gender-stereotyping jurisprudence. See Hively, 2017 WL 1230393, at *5; Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring).
9

concluded that there is no rationale for treating anti-gay bias different from other discrimination based on one’s failure to conform to gender norms. Hively, 2017 WL 1230393, at *5; Christiansen, 852 F.3d at 205; see also Add. 5 (noting “longstanding tension” between Simonton and Price Waterhouse).
Finally, after detailing what he deemed the “persuasive arguments” not addressed in Simonton, Chief Judge Katzmann addressed and rejected the infirm argument (invoked with hesitation), in Simonton: Congress’s inaction on bills that would have provided sexual orientation protections. 232 F.3d at 36. Judge Katzmann cautioned that one should “not rely on the ‘hazardous basis’ of congressional inaction” for statutory interpretation, Christiansen, 852 F.3d at 206 (citation omitted). See also Hively, 2017 WL 1230393, at *3. Instead, the correct interpretive approach is not only clear but mandatory: courts focus on “the language that already is in the statute[.]” Hively, 2017 WL 1230393, at *3. No argument (including congressional inaction) can defeat a plaintiff who “can demonstrate that he or she was discriminated against ‘because of . . . sex’” given Oncale’s instruction that Title VII’s scope “must extend to [discrimination] of any kind that meets the statutory requirements.” Christiansen, 852 F.3d at 207 (Katzmann, C.J., concurring) (citing Oncale, 523 U.S at 80) (changes in original).
10

III. This Is an Appropriate Case to Decide whether Title VII’s Prohibition Against Sex Discrimination Encompasses Sexual Orientation Discrimination.
In Christiansen, the Chief Judge urged the full Court to reconsider Simonton and Dawson in an “appropriate case.” 2017 WL 1130183, at *9. This is the case. “Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation,” a “result . . . foreclosed by Simonton.” Add. 8 (emphasis added). He may obtain relief only if this Court reviews it en banc and joins the many calls for this Court to overturn Simonton and Dawson.
Zarda will abandon his evidentiary points to reach this sole question of extraordinary, national importance. He seeks review only as to whether discrimination by sexual orientation is a form of sex discrimination under Title VII. Zarda is a case that squarely (and solely) presents the question whether same-sex attraction is sex stereotyping. A denial of the petition would represent not only an injustice to Zarda, but be of disservice to the institutional concerns underlying this Court’s principles regarding when to reconsider a case en banc.
IV. This Case Merits En Banc Review under this Court’s Standards. The Court should grant this petition because it fits squarely within the concerns underlying the principles and touchstones regarding en banc review. “En banc review should be limited generally to only those cases that raise issues of
11

important systemic consequences for the development of the law and the administration of justice.” Watson v. Geren, 587 F.3d 156, 160 (2d Cir. 2009) (per curiam) (en banc). This is precisely such a case.5
The most compelling reason for en banc rehearing is to consider an exceptionally important issue with widespread application; one that depends on overruling existing precedent; one that conflicts with Supreme Court precedent; and one involving precedents repudiated by respected jurists. Each of these considerations is present here, the challenge to existing law comes from a majority of judges that decided the original precedent and from a sister circuit that overruled similar cases from the same era.
Granting this petition does not vary from the Court’s reluctance to add another “step on an elongated appellate ladder” for litigants who received a full, if unsatisfying, hearing before a panel of the Court. Irving R. Kaufman, Do the Costs of the En Banc Proceeding Outweigh Its Advantages?, 69 Judicature 7, 8 (1985). Zarda should not be regarded as one of the sore “losing litigants” giving insufficient weight to institutional considerations in their quest for “what they regard as the ‘correct’ decision.” Jon O. Newman, In Banc Practice in the Second Circuit, 1984-
5 That two similar petitions are pending regarding this issue underscores its importance in asking this Court for en banc review. Christiansen, No. 16-748(2d Cir. Apr. 28, 2017); Pet. for Hearing En Banc, Cargian v. Breitling USA, Inc., No. 16-3592 (2d Cir. Apr. 19, 2017).
12

1988, 55 Brook. L. J. 355, 370 (1989). To the contrary, the principal arguments in support of Zarda’s position under Title VII have never wholly been considered, nor rejected, by any panel of this Court—much less been on the merits. Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring).
Zarda’s interest in having those positions reconsidered aligns with a proper respect for this Court’s organizational customs and concerns. There are no interests served where, as here, no panel of the Court has ever had—nor will ever have, in the absence of en banc review—an opportunity to consider them, in the context of a significant provision in an historically vital civil rights statute. Id.; Add. 8.
Granting the petition does not disturb this Court’s desire to foster collegiality among judges nor to establish respect for the role of panels in establishing jurisprudence. Jon O. Newman, In Banc Practice in the Second Circuit, 1984-1988, 55 Brook. L. J. 355, 370 (1989). A majority of the judges who decided Simonton say it merits revisitation; of those judges, Chief Judge Katzmann, advises a need for critique and reassessment of Simonton, given new, convincing arguments and the vast changes in rights afforded the LGBT community in the intervening 17 years. Christiansen, 852 F.3d at 202, 206 (Katzmann, C.J., concurring).
Moreover, to adhere to Simonton, this Court would, if only by default, be satisfied to have it remain unaligned with the conclusions of other panels. For example, while Holcomb’s coherent analysis connects with consistent, nationwide
13

consensus on claims of associational discrimination, it cannot be squared with reaffirmance of Simonton. Similarly, adherence to Simonton is untenable given Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013). The Court cannot afford proper respect to Windsor’s holding that sexual orientation classifications are “quasi-suspect,” id. at 181-82, unless it disavows judiciallycrafted rules that disallow viable sex discrimination claims solely because they involve sexual orientation bias.6
Should the Court reexamine its holdings, it could have a vital effect on the development of the law. Multiple circuits have given significant weight to Simonton in assessing whether Title VII’s prohibition on sex discrimination reaches claims of sexual orientation discrimination. See Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (citing Simonton); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001) (same). See also Vickers v. Fairfield Med. Ctr., 454 F.3d 757, 763-64 (6th Cir. 2006) (Dawson). Evans cited Simonton. 850 F.3d at 1256.
Obversely, several district courts within this Circuit have struggled with these cases to apply “the line between a gender nonconformity claim and one based on sexual orientation . . . [because] it does not exist,” Hively, 2017 WL 1230393, at *5.
6 Windsor did not address whether sexual orientation discrimination constitutes sex discrimination and the plaintiff did not advance such argument. See generally Br. of Appellee, Windsor v. United States, No. 12-2435 (2d Cir. Aug. 31, 2012).
14

One court held it was no more than “a lingering and faulty judicial construct.”
Videckis, 150 F. Supp. 3d at 1159. See also, Estate of D.B. v. Thousand Islands Cent.
Sch. Dist., 169 F. Supp. 3d 320, 332–33 (N.D.N.Y. 2016) (“harassment consist[ing]
of homophobic slurs directed at a homosexual, [is considered] gender-stereotyping”
only by “improper bootstrapping. If, on the other hand, the harassment consists of
homophobic slurs directed at a heterosexual, then a gender-stereotyping claim . . . is
possible.”); Maroney v. Waterbury Hosp., No. 10-CV-1415, 2011 WL 1085633, at
*2 n.2 (D. Conn. Mar. 18, 2011) (“The Second Circuit[‘s holdings make] gender
stereotyping claims . . . especially difficult for gay plaintiffs to bring.”) And while
Christiansen acknowledged “some confusion . . . about the relationship between
gender stereotyping and sexual orientation discrimination claims,” it did not clear
up the confusion. 2017 WL 1130183, at *3. Because this jurisprudential disarray is
attributable, at least in part, to decisions of this Court, this Court should step in to rectify the disorder.7
7 Avoiding the en banc is said to promote collegiality, but strict adherence to this tradition perhaps devalues this goal. See, e.g., the dissents in Ricci v. Destefano, 530 F.3d 88, 93 (2d Cir. 2008); Landell v. Sorrell, 406 F.3d 159, 167 (2d Cir. 2005); and Muntaqim v. Coombe, 385 F.3d 793, 795 (2d Cir. 2004). A concurrence in Muntaqim noted a petition for en banc rehearing was denied without prejudice if certiorari were denied. Id. at 795. Judge Jacobs lamented that suggestion, id. at 49, and noted in Ricci that a failure to exercise discretion can “constitute[] an error of law.” 530 F.3d at 92 (citation omitted). Judge Cabranes further noted that the phrase “Per Curiam” “is normally reserved for cases that present straight-forward questions[.]” Muntaqim 385 F.3d at 93. Zarda was Per Curiam, but hardly straight-forward.
15

CONCLUSION
The panel below was unambiguous: “if Title VII protects against sexual
orientation discrimination, then Zarda would be entitled to a new trial,” but the
“result is foreclosed by Simonton.” Add. 7, 8. This court should “sit[] en banc to
consider what the correct rule of law is now in light of the Supreme Court’s
authoritative interpretations, not what someone thought it meant one, ten, or twenty
years ago.” Hively, 2017 WL 1230393, at *9.
Accordingly, Plaintiffs-Appellants respectfully request that the Court rehear
this case en banc and hold that sexual orientation discrimination is a form of sex
discrimination, so that Zarda may enjoy the protections and remedies of Title VII
and challenge the sex-based mistreatment he endured.
En banc review was once disfavored because “Supreme Court resolution is inevitable [in hard cases, therefore they should not] tarry . . . for further intermediate action[.]” Green v. Santa Fe Industries, Inc. 533 F.2d 1309, 1310 (2d.Cir.1976). The late Judge Oakes heartily disagreed in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1021 (2d Cir. 1973) (“With all respect I do not know how we can be so prescient about the United States Supreme Court.”) In the Green era, the High Court granted 180 petitions. Now, with more petitions, 80 grants are the norm. Ryan J. Owens and David A. Simon, “Explaining the Supreme Court's Shrinking Docket,” 53 Wm. & Mary L. Rev. 1219, 1229 (2012). Most significantly, the Circuits created the caselaw we challenge. With a minuscule chance of obtaining a writ, notwithstanding a potential circuit split, the circuits should address this law and it is likely that only an en banc reversal will allow Zarda to vindicate his rights, and in the offing change a body of law that courts routinely apply with displeasure.
16

Dated this 2nd day of May, 2017.

Respectfully submitted,

/s/ Gregory Antollino GREGORY ANTOLLINO, ESQ. 275 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397

/s/ Stephen Bergstein STEPHEN BERGSTEIN BERGSTEIN & ULLRICH, LLP 5 Paradies Lane New Paltz, New York 12561 (845) 469-1277

Counsel for Plaintiffs-Appellants

We owe sincere gratitude to Lambda Legal Defense Fund, specifically, attorneys Greg Nevins, Omar GonzalesPagan, Michael Kavey and Sharon McGowan, for their substantial contributions in finalizing this brief.

17

CERTIFICATION UNDER F.R.A.P 32(g) Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that: 1. This petition complies with the type-volume limitation, as provided in Fed. R. App. P. 35(b)(2), because, exclusive of the exempted portions of the petition, the petition contains 3,894 words. 2. This brief complies with the type-face requirements, as provided in Fed. R. App. P. 32(a)(5), and the type-style requirements, as provided in Fed. R. App. P. 32(a)(6), because the brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font. 3. As permitted by Fed. R. App. P. 32(g)(1), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. Dated this 2nd day of May, 2017.
/s/ Gregory Antollino GREGORY ANTOLLINO, ESQ. 275 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397
18

CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing Petition with the Clerk of the United States Court of Appeals for the Second Circuit via the CM/ECF system this 2nd day of May, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Gregory Antollino GREGORY ANTOLLINO, ESQ. 275 Seventh Avenue, Suite 705 New York, New York 10001 (212) 334-7397
19

ADDENDUM TO THE PETITION, ZARDA V. ALTITUDE EXPRESS, 15-3775, MAY 2, 2017

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page1 of 10
15-3775 Zarda v. Altitude Express
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016
(Argued: January 5, 2017 Decided: April 18, 2017) Docket No. 15-3775
- - - - - - - - - - - - - - - - - - - -x 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, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD,
Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x
Before: JACOBS, SACK, and LYNCH, Circuit Judges. Donald Zarda, a skydiver, sued his former employer in the United States District Court for the Eastern District of New York (Bianco, J.), asserting (inter alia) sexual-orientation discrimination in violation of New York state law and sex

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page2 of 10
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. The district court, relying on our decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on sexual orientation constituted discrimination based on sex for purposes of Title VII. The state-law claim for sexual-orientation discrimination went to trial where a jury found for the defendants. On appeal, Zarda argues that Simonton should be overturned. We do not entertain that argument because a panel of this Court could not overturn another panel’s decision. Moreover, we reject Zarda’s argument that he is entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes. Consequently, we AFFIRM the judgment of the district court in all respects.
GREGORY ANTOLLINO, New York, NY, for Appellants.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Appellants.
SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for Appellees.
Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson, and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5; National Association of Working Women; A Better Balance; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Voice; National Women’s Law Center;
2

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page3 of 10
Southwest Women’s Law Center; Women Employed; Women’s Law Center of Maryland; Women’s Law Project, in support of Plaintiffs-Appellants.
Michael D.B. Kavey, LGBTQ Rights Clinic, New York, NY; Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal, in support of Plaintiffs-Appellants.
PER CURIAM:
Plaintiff Donald Zarda, a skydiver, alleges that he was fired from his job as a skydiving instructor because of his sexual orientation.1 He sued his former employer, Altitude Express (doing business as Skydive Long Island) and its owner Raymond Maynard (collectively “Altitude Express”), asserting that he was discriminated against in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and New York law.2 The United States District Court for the Eastern District of New York (Bianco, J.), found a triable issue of fact as to whether Zarda faced discrimination because of his sexual orientation in violation of New York law, but otherwise granted summary judgment to Altitude Express on Zarda’s discrimination claims. In particular, the district court held that the defendants were entitled to summary judgment on Zarda’s Title VII claim because Second Circuit precedent holds that Title VII does
1 Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda and his estate’s executors are collectively referred to as “Zarda.”
2 Zarda also alleged violations of state and federal laws relating to overtime and minimum wage. Those claims are not before us on appeal.
3

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page4 of 10
not protect against discrimination based on sexual orientation. At trial, the jury found for the defendants on Zarda’s state-law claims.
On appeal, Zarda requests that we reconsider our interpretation of Title VII in order to hold that Title VII’s prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation.” Since a three-judge panel of this Court lacks the power to overturn Circuit precedent, we decline Zarda’s invitation.
Separately, Zarda asserts that several errors infected the trial on his statelaw discrimination claim, warranting a new trial. Finding no abuse of discretion by the district court, we affirm the judgment in all respects.
I
In 2010, Rosanna Orellana and her boyfriend David Kengle went skydiving at Altitude Express. Each purchased tandem skydives, in which the instructor is tied to the back of the client so that the instructor can deploy the parachute and supervise the jump. Zarda was Orellana’s instructor.
At some point, Zarda informed Orellana that he was homosexual and he had recently experienced a break-up. Zarda often informed female clients of his sexual orientation--especially when they were accompanied by a husband or boyfriend--in order to mitigate any awkwardness that might arise from the fact that he was strapped tightly to the woman.
When Orellana and Kengle compared notes on their respective skydives, and Kengle learned that Zarda had disclosed his sexual orientation, Kengle called Altitude Express to complain about Zarda’s behavior. Zarda was fired shortly thereafter. Predictably, the parties dispute why Zarda was terminated. Altitude Express observes that Orellana had various complaints about Zarda’s behavior, and the company contends that Zarda was fired because he failed to provide an enjoyable experience for a customer. For his part, Zarda asserts that he acted appropriately at all times and was fired because of his sexuality: either because of
4

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page5 of 10
his supervisor’s prejudice against homosexuals or because he informed a client about his sexuality.3
II
The district court determined that there was a genuine dispute of material fact regarding the reason for Zarda’s termination. However, the district court concluded that Zarda was entitled to a trial only with respect to his state-law cause of action. See N.Y. Exec. Law § 296(1)(a) (defining discrimination on the basis of sexual orientation as “an unlawful discriminatory practice”). Zarda’s Title VII claim, by contrast, was dismissed at summary judgment.
That outcome ultimately resulted from longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.” J. App’x at 30. Accordingly, the district court, granted summary judgment in favor of defendants without analyzing whether Zarda could rely on a “sex stereotype” that men should date women. Instead, the district court limited its analysis to the “sex stereotypes” alleged by Zarda, including “what you may wear or how you may behave.” Special App’x at 26. Determining that Zarda failed to establish the requisite proximity between his termination and his proffered instances of gender non-conformity (not including the fact that he dated other men), the district court granted summary judgment to defendants on Zarda’s Title VII claim.
3 Zarda alleged that another skydiving instructor had disclosed that he was heterosexual but was not punished.
5

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page6 of 10
During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). Relying on Baldwin, Zarda moved the district court to reconsider its grant of summary judgment on his Title VII claim. The district court denied the motion, holding that Simonton was contrary to the EEOC’s decision, and that it barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII.
After his state-law sexual-orientation claim proceeded to trial and a jury found for the defendants, Zarda appealed.
III
Zarda asserts that Simonton’s holding that “Title VII does not proscribe discrimination because of sexual orientation” is incorrect and should be overturned. 232 F.3d at 36. As a threshold matter, Altitude Express contends that we need not consider this argument in light of the jury verdict in favor of the defendants on Zarda’s state-law discrimination claim. Essentially, Altitude Express argues that the scope of Title VII’s protections are irrelevant to Zarda’s appeal because the jury found that Altitude Express had not discriminated.
Altitude Express is incorrect; Zarda’s sex-discrimination claim is properly before us because the district court held him to a higher standard of causation than required by Title VII. Under Title VII, a plaintiff must demonstrate that sex “was a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision to take the [adverse employment] action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). Accordingly, to show causation for sex discrimination under Title VII, “[i]t suffices . . . to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013).
6

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page7 of 10
At trial, the district court instructed the jury that Zarda could prevail on his state-law sexual-orientation discrimination claim only if he could prove that “he would have continued to work for Altitude Express . . . except for the fact that he was gay.”4 J. App’x at 1771. In other words, the jury charge required Zarda to prove but-for causation, which is a higher standard of causation than is necessary for Title VII sex-discrimination claims. See Vega, 801 F.3d at 86 (“[A] plaintiff in a Title VII case need not allege ‘but-for’ causation.”).
If Zarda is correct that discrimination based on sexual orientation is equivalent to prohibited sex discrimination under Title VII, then he would have been entitled to a jury instruction on the less stringent “motivating-factor” test for causation. See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (indicating that an instruction that advises the jury on an erroneously high burden of proof warrants a new trial). It is entirely possible that a jury thought that Zarda’s sexual orientation was “one of the employer’s motives” (i.e. a “motivating factor”) in its termination decision, but was not a “but-for cause” of his firing. In sum, if Title VII protects against sexual-orientation discrimination, then Zarda would be entitled to a new trial.
Zarda’s request that we overturn Simonton is therefore not mooted by the jury verdict on his state-law claim. Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar, see United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004); cf. Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (in banc) (overturning, as an in banc court, prior Seventh Circuit precedent holding that Title VII did not prohibit discrimination based on sexual orientation).
In Christiansen, the panel nonetheless remanded to the district court after concluding that the plaintiff had stated a plausible claim of “gender
4 We express no view as to whether the district court correctly instructed the jury on New York law.
7

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page8 of 10
stereotyping,” which is actionable under Title VII. 2017 WL 1130183, at *4. That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal. Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation--a result foreclosed by Simonton.
IV
Zarda asserts that he is entitled to a new trial on his state-law, sexualorientation discrimination claim for several reasons. None has merit.
A
Evidentiary Rulings. Zarda contends that the district court improperly admitted two types of prejudicial evidence. He suggests that the probative value of the evidence was substantially outweighed by its resulting prejudice. See Fed. R. Evid. 403. We review the district court’s decision to admit this evidence for abuse of discretion. Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014).
Zarda contends that the district court improperly admitted evidence concerning an occasion, nine years earlier, on which Zarda had been terminated from Altitude Express. As an initial matter, Zarda does not clearly identify the evidence he believes was improperly admitted, or why it was prejudicial. In any event, as the district court observed, evidence relating to the circumstances of an employee’s previous termination is relevant to determining the circumstances of the same employee’s later termination. Zarda has not shown that any prejudice substantially outweighed the relevance of this evidence. Accordingly, we see no abuse of discretion.
The district court also admitted deposition testimony in which Zarda acknowledged that there was a (small) possibility that the cause of his termination in 2001 was his filing for Worker’s Compensation benefits. Assuming that this statement was prejudicial, any prejudice was negligible.
8

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page9 of 10
Zarda stated at deposition that Worker’s Compensation might have played no more than a minimal role in his firing; moreover, Zarda’s supervisor testified that he knew it would be illegal to fire someone for seeking Worker’s Compensation benefits, and that he did not fire Zarda for this reason.
B
Witness List. Zarda argues that the defendants hindered Zarda’s trial preparation by listing dozens more proposed witnesses in the parties’ joint pretrial order than the defendants intended to call. Zarda apparently argues that the district court should have precluded the defense witnesses from testifying, pursuant to Rules 26 and 37(c)(1) of the Federal Rules of Civil Procedure.
Even when Rule 37(c)(1) allows for witness preclusion, preclusion is not mandatory. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006). Here the district court had good reason to allow the testimony. The court found that the evidence was important, that Zarda had some notice regarding the potential testimony, and that there was no indication that the defendants had engaged in improper gamesmanship. We review a district court’s decision to preclude testimony based on Rule 37(c)(1) for abuse of discretion, and we see none here. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
C
Appeals to Prejudice. Zarda contends that defense counsel improperly influenced the jury by appealing to prejudice against homosexuals. On review, we consider whether the district court abused discretion by failing to grant relief. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Zarda is entitled to a new trial “only if [opposing] counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury.” Id. at 127 (quoting Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir. 1989)).
Although Zarda complains of several allegedly offensive remarks, the context of each comment suggests that the statements were not improper
9

Case 15-3775, Document 244-1, 04/18/2017, 2013376, Page10 of 10
references to stereotypes. For example, Zarda argues that counsel’s description of the relationship between Zarda and one of his witnesses as “odd” is prejudicial. However, the witness was testifying in support of Zarda’s claim for emotional damages, and defense counsel made this comment while trying to downplay the closeness of Zarda’s relationship with the witness in order to make the jury skeptical of the witness’s knowledge of Zarda’s emotional state. The district court held that the characterization of the relationship as “odd” was a fair argument that went to the credibility of the witness. Zarda has not shown that the district court’s ruling was an abuse of discretion or an “error[] . . . that w[as] ‘clearly prejudicial to the outcome of the trial;’” consequently, he is not entitled to a new trial. Marcic, 397 F.3d at 124 (quoting Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)).
CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.
10

 
 No. 15-3775

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MELISSA ZARDA and WILLIAM ALLEN MOORE, JR., co-independent executors of the estate of Donald Zarda,
Plaintiffs/Appellants,
v.
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND; and RAY MAYNARD,
Defendants/Appellees.

On Appeal from the United States District Court for the Eastern District of New York

EN BANC BRIEF OF AMICUS CURIAE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF
PLAINTIFFS/APPELLANTS AND IN FAVOR OF REVERSAL

JAMES L. LEE Deputy General Counsel

JEREMY D. HOROWITZ Attorney

JENNIFER S. GOLDSTEIN Associate General Counsel
ANNE NOEL OCCHIALINO Senior Appellate Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel 131 M St., N.E., Room 5SW24J Washington, D.C. 20507 (202) 663-4716 jeremy.horowitz@eeoc.gov

TABLE OF CONTENTS
TABLE OF AUTHORITIES ...............................................................................................ii
STATEMENT OF INTEREST .......................................................................................... 1
STATEMENT OF THE ISSUE ......................................................................................... 1
STATEMENT OF THE CASE .......................................................................................... 2
Statement of the Facts...................................................................................................... 2
District Court and Circuit Court Decisions .................................................................. 2
ARGUMENT ......................................................................................................................... 4
I. Sexual Orientation Discrimination is Discrimination “Because of … Sex” Under Title VII. ....................................................................................................... 5
A. Sexual orientation discrimination is, by definition, discrimination “because of … sex,” in violation of Title VII.............................................. 5
B. Sexual orientation discrimination constitutes associational discrimination that violates Title VII. ................................................................................... 10
C. Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII. .................................................................................... 13
II. Precedent and Practicality Also Justify Overruling Simonton En Banc. ........... 18
A. The cases on which Simonton relied are no longer good law. ................... 18
B. Simonton and Dawson’s distinction between permissible sexual orientation discrimination and impermissible gender stereotyping is unworkable and leads to absurd results. .................................................................................. 19
III. The Contrary Arguments Do Not Justify Retaining Simonton as Binding Authority. ................................................................................................................ 22
CONCLUSION ................................................................................................................... 25
i

TABLE OF AUTHORITIES
Page(s)
Cases
Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004)............................................................................................. 8
Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015)..................... 2, 6
Boutillier v. Hartford Public Schools, 221 F. Supp. 3d 255 (D. Conn. 2016) ................................................................ 7, 16, 20
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ........................................................................... 17
Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017)..................................................................................... passim
Connecticut v. Teal, 457 U.S. 440 (1982) .......................................................................................................... 8
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).................................................................................4, 18, 20
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), vacated in part on other grounds in Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc)................................. 11
DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979) ......................................................................................... 19
EEOC v. Boh Brothers Construction Co., 731 F.3d 444 (5th Cir. 2013) (en banc) .................................................................. 14, 22
EEOC v. Scott Medical Health Center, P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016)........................................................................... 16
Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) ............................................................................... 21, 24
ii

Floyd v. Amite County School District, 581 F.3d 244 (5th Cir. 2009) ......................................................................................... 11
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ..................................................................................... 15
Hall v. BNSF Railway Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) ............................... 6
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002)......................................................................... 7, 17
Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc) .................................................................. passim
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008)..................................................................................... 10, 11
Horace v. City of Pontiac, 624 F.2d 765 (6th Cir. 1980) ......................................................................................... 12
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ........................................................................................................ 23
Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978) .................................................................................................. 6, 8, 9
Loving v. Virginia, 388 U.S. 1 (1967)......................................................................................................... 9, 11
McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004) ....................................................................................... 11
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) .......................................................................................................... 23
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) .......................................................................................................... 6
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) .............................................................................10, 15, 19
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .................................................................................................... 22
iii

Oncale v. Sundowner Offshore Oil Services, Inc., 523 U.S. 75 (1998) ..............................................................................................18, 19, 23
Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986) ....................................................................................... 11
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990) ........................................................................................................ 24
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .................................................................................................. passim
Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009)........................................................................................... 21
Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999) ......................................................................................... 19
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ....................................................................................... passim
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) ......................................................................................... 14
Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994) ......................................................................................... 11
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) .......................................................................... 16, 17
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) ......................................................................................... 11
Videckis v. Pepperdine University, 150 F. Supp. 3d 1151 (C.D. Cal. 2015) .............................................................. 7, 16, 20
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000) ............................................................................................. 11
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982) ......................................................................................... 12
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989)............................................................................................ 19
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Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996)............................................................................................ 19
Statutes Civil Rights Act of 1964 Title VII, 42 U.S.C. §§ 2000e et seq.................................... passim
42 U.S.C. § 2000e-2(a).................................................................................................... 13 42 U.S.C. § 2000e-2(a)(1) ................................................................................................. 4 42 U.S.C. § 2000e-2(e)(1) ............................................................................................... 12
Other Authorities Fed. R. App. P. 29(a).............................................................................................................. 1 Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting the BFOQ
Defense in the Employment Non-Discrimination Act, 19 Law & Sexuality 1 (2010)................................................................................................................................ 24 Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 766 (2014) .................................................................................... 21 Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment NonDiscrimination Act, 44 U.S.F. L. Rev. 1 (2009) .............................................................. 24
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STATEMENT OF INTEREST The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses whether claims of sexual orientation discrimination are cognizable under Title VII as claims of sex discrimination. Because such claims necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping, the EEOC believes they fall squarely within Title VII’s prohibition against discrimination on the basis of sex. In furtherance of its strong interest in the interpretation of the federal anti-discrimination employment laws, and in response to the invitation in this Court’s Order of May 31, 2017, the EEOC offers its views to the Court. Fed. R. App. P. 29(a).
STATEMENT OF THE ISSUE Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination “because of … sex”?
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STATEMENT OF THE CASE A. Statement of the Facts Plaintiff Donald Zarda worked for Defendant Altitude Express as a skydiving instructor.1 Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. B. District Court and Circuit Court Decisions The district court granted summary judgment to Altitude Express on Zarda’s Title VII claim, finding no evidence that his termination was connected to his failure to conform to a masculine stereotype. At the same time, the district court found sufficient evidence of sexual orientation discrimination to allow Zarda’s state law discrimination claim to go forward. Zarda sought reconsideration of the denial of his Title VII claim based on the newly decided Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), an EEOC administrative decision holding that sexual orientation discrimination violates Title VII. The district court denied the motion, concluding it was bound by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which held that Title VII does not prohibit discrimination based on sexual
1 Zarda is deceased. Two executors of his estate have replaced him as plaintiff. 2

orientation. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.
On appeal, Zarda challenged the dismissal of his Title VII claim under Simonton but did not challenge the court’s ruling that he had failed to establish a connection between his termination and his failure to conform to gender stereotypes in appearance or behavior. Thus, he limited his appeal to the question whether Simonton precludes claims of sexual orientation discrimination under Title VII.2 A panel of this Court affirmed the district court’s ruling, holding that “Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation – a result foreclosed by Simonton.” Slip op. at 8. This Court also held that the jury’s finding on Zarda’s state law sexual orientation claim did not moot the Title VII issue because a sexual orientation discrimination claim under New York state law is subject to a “but-for causation” standard of proof, which is higher than the “motivating factor” standard attaching to Title VII claims. Id. at 7. Thus, this Court concluded, “if Title VII protects against sexual-orientation discrimination, then Zarda would be entitled to a new trial.” Id. In its May 25, 2017 Order, this Court granted en banc rehearing limited to the issue whether Title VII’s prohibition of discrimination “because of … sex” encompasses discrimination on the basis of sexual orientation.
2 Zarda also appealed several other rulings relating to the trial. He does not seek en banc review of these rulings.
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ARGUMENT Title VII prohibits employers from discriminating against an individual “because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This Court concluded seventeen years ago that “Title VII does not prohibit harassment or discrimination because of sexual orientation.” Simonton, 232 F.3d at 35; see also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-218 (2d Cir. 2005). In the years since this Court decided Simonton and Dawson, however, the EEOC and an increasing number of courts (including, most recently, the Seventh Circuit sitting en banc) have analyzed the issue and come to the opposite conclusion. In doing so, they have repeatedly focused on three arguments about sexual orientation discrimination, none of which was addressed in Simonton or Dawson: that such discrimination (1) involves impermissible sex-based considerations, (2) constitutes gender-based associational discrimination, and (3) relies on sex stereotyping. For each of these reasons, sexual orientation discrimination is sex discrimination, and sex discrimination violates Title VII. See Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 207 (2d Cir. 2017) (Katzmann, C.J., concurring) (summarizing these theories and noting that “[n]either Simonton nor Dawson had occasion to consider these worthy approaches”). Several additional reasons warrant overruling Simonton and its progeny. First, the primary authorities on which that case relied are no longer followed. Second, as many courts have concluded, the line this Court drew in Simonton and Dawson between sexual orientation discrimination and discrimination based on sex stereotypes is
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unworkable and leads to absurd results. Thus, both precedent and practicality dictate overruling Simonton. I. Sexual Orientation Discrimination is Discrimination “Because of …
Sex” Under Title VII. As Chief Judge Katzmann’s Christiansen concurrence noted, this Court did not have the benefit of three key arguments when it first addressed whether Title VII’s prohibition on sex-based discrimination includes a prohibition on sexual orientation discrimination. Christiansen, 852 F.3d at 202, 206-07 (Katzmann, C.J., concurring). Those three arguments – that sexual orientation discrimination treats otherwise similarly situated people differently solely because of their sex, constitutes associational discrimination, and necessarily involves impermissible sex stereotyping, all in violation of Title VII – lead inexorably to the conclusion that discrimination because of sexual orientation cannot rationally be distinguished from discrimination because of sex. Sexual orientation discrimination is, by definition, discrimination
“because of … sex,” in violation of Title VII. In passing Title VII, Congress made the “simple but momentous announcement” that sex, like other protected characteristics, is “not relevant” to employment decisions; thus, in making such decisions, employers “may not take gender into account.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239, 242 (1989). If an employer treats an employee less favorably than it would treat a comparable employee who, aside from his or her sex, is identical in all respects (including, for example, the
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sex of that employee’s spouse), the employer discriminates against the employee “because of sex.” See L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (employing “the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” to determine whether a sex-based violation of Title VII occurred (internal citation and quotation marks omitted)); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983) (applying Manhart’s “simple test of Title VII discrimination”); Baldwin, 2015 WL 4397641, at *5 (noting that an employer who fires a lesbian employee but not a male employee for displaying a photo of a female spouse at work would violate Title VII under Manhart by impermissibly taking the employee’s sex into account).
Several courts have already applied Manhart’s “simple test” to hold that sexual orientation discrimination constitutes discrimination because of sex. The Seventh Circuit en banc court posed the counterfactual scenario of “a situation in which [the plaintiff] is a man, but everything else stays the same: in particular, the sex or gender of the partner.” Hively v. Ivy Tech Community Coll., 853 F.3d 339, 345 (7th Cir. 2017) (en banc). To the extent no discrimination would have occurred in this alternate scenario, the court concluded, “[t]his describes paradigmatic sex discrimination.” Id. (holding that sexual orientation discrimination therefore violates Title VII). In Hall v. BNSF Railway Co., similarly, the court held that a plaintiff, a man married to another man, successfully alleged sex discrimination under Title VII when he was denied a spousal health benefit available to similarly situated women married to men. No. C13-2160,
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2014 WL 4719007, at *3 (W.D. Wash. Sept. 22, 2014). The court in Heller v. Columbia Edgewater Country Club explained that a woman claiming sexual harassment could prove her claim if she could show that her manager would have treated her differently if she were a man dating a woman instead of a woman dating a woman. Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002). In Videckis v. Pepperdine University, the court explained, “If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment,” and therefore concluded that they “have stated a straightforward claim of sex discrimination.” Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1161 (C.D. Cal. 2015).3
Each of these cases recognizes the same principle: sexual orientation discrimination requires the employer to take the employee’s sex into account (in conjunction with the sex of that employee’s actual or desired partner). See Hively, 853 F.3d at 358 (Flaum, J., concurring) (“Fundamental to the definition of homosexuality is the sexual attraction to individuals of the ‘same sex.’ … One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ meaningless.”); Boutillier, 221 F. Supp. 3d at 267 (noting that sexual orientation discrimination necessarily requires a consideration of the sex of the individual, as well as that of the partner). In short, an employer cannot discriminate
3 Videckis is a Title IX case, but the court stressed that the same analysis applies to claims under Title IX and Title VII. Videckis, 150 F. Supp. 3d at 1158.
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against an employee based on that employee’s sexual orientation without taking the employee’s sex into account – precisely what Title VII forbids. Price Waterhouse, 490 U.S. at 242.
Under this analysis, it is irrelevant that an employer discriminating on the basis of sexual orientation does not discriminate against all men or women, but only against those who are gay or lesbian. Title VII has never required an employer to discriminate against all employees in a protected class before recognizing an individual employee’s claim. See Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of … sex merely because [it] favorably treats other members of the employees’ group.”); Hively, 853 F.3d at 346 n.3 (“A failure to discriminate against all women does not mean that an employer has not discriminated against one woman on the basis of sex.”); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir. 2004) (holding that a valid claim of gender discrimination does not require discrimination against all members of a disfavored class).
In her Hively dissent, Judge Sykes disagreed with the en banc majority’s application of Manhart. She argued instead that the valid comparison in the sexual orientation context requires comparing the treatment of gay men to that of lesbians, rather than comparing a heterosexual man to a lesbian, or a gay man to a heterosexual woman. See, e.g., Hively, 853 F.3d at 366 (Sykes, J., dissenting) (“If an employer is willing to hire gay men but not lesbians, then the comparative method has exposed an
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actual case of sex discrimination.”). But such an argument distorts Manhart’s “simple test.” Manhart, 435 U.S. at 711. Rather than simultaneously changing both the plaintiff’s (a) sex and (b) sexual orientation to create a hypothetical comparator, as Judge Sykes proposed, Manhart instead requires that the court change only the protected characteristic being analyzed – the plaintiff’s sex. See Hively, 853 F.3d at 345 (“The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once.”). Adopting Judge Sykes’s approach strays from the simple Manhart approach by changing two variables; this “would no longer be a ‘but-for-the-sex-ofthe-plaintiff’ test.” Christiansen, 852 F.3d at 203 (Katzmann, C.J., concurring); cf. Loving v. Virginia, 388 U.S. 1, 7-8 (1967) (rejecting the argument in the Equal Protection Clause context that anti-miscegenation laws did not discriminate between races because it restricted members of both races equally from engaging in interracial relationships). In Price Waterhouse, the Supreme Court did not examine whether the plaintiff was treated differently from a comparable male perceived as insufficiently masculine. Instead, the Court asked, simply, whether she was treated differently because of her sex. Price Waterhouse, 490 U.S. at 241; see also Hively, 853 F.3d at 359 (Flaum, J., concurring) (“So if discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated trait: the employee’s sex. That is all an employee must show to successfully allege a
9

Title VII claim.”). Sex alone is the key factor guiding the inquiry; “the holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.” Nichols, 256 F.3d at 874.
Sexual orientation discrimination constitutes associational discrimination that violates Title VII.
Sexual orientation discrimination also violates Title VII’s prohibition against sex discrimination because it treats individuals differently based on the sex of those with whom they associate. Just as discrimination against individuals based on the race of their partners and friends constitutes a violation of Title VII, discrimination based on the sex of those with whom an individual associates similarly violates the statute. Such associational discrimination necessarily, and illegally, takes into account the employee’s sex, in violation of Title VII. See Price Waterhouse, 490 U.S. at 243.
This Court recognized that associational discrimination violates Title VII. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), decided eight years after Simonton, a white assistant college basketball coach alleged he had been terminated because he married a black woman. This Court held that he had established a prima face case of race discrimination, explaining that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” Id. at 132. The holding did not depend on a theory of third-party injury; to the contrary, this Court explained, “where an employee is subjected to
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adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139.
A panoply of cases from other circuits, involving a range of interracial associational relationships, have likewise concluded that such claims for associationbased discrimination are cognizable under Title VII. See, e.g., Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (interracial marriage); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998) (interracial dating), vacated in part on other grounds in Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir. 1999) (having a biracial child); Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1327 n.6 (8th Cir. 1994) (interracial working relationship); Floyd v. Amite Cty. Sch. Dist., 581 F.3d 244, 249 (5th Cir. 2009) (interracial teacher-student friendship); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir. 2004) (interracial friendships or associations among coworkers).
As the Seventh Circuit recently explained, “[t]he fact that Loving, Parr, and Holcomb deal with racial associations, as opposed to those based on color, national origin, religion, or sex, is of no moment. The text of the statute draws no distinction, for this purpose, among the different varieties of discrimination it addresses ….” Hively, 853 F.3d at 349. This Court and others have made the same observation. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 n.2 (2d Cir. 2000) (“[T]he same standards apply to both race-based and sex-based hostile environment claims.”
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(internal citation omitted)); Williams v. Owens-Illinois, Inc., 665 F.2d 918, 929 (9th Cir. 1982) (“Under [Title VII] the standard for proving sex discrimination and race discrimination is the same.”); Horace v. City of Pontiac, 624 F.2d 765, 768 (6th Cir. 1980) (holding that standards and orders of proof used in race discrimination cases “are generally applicable to cases of sex discrimination”). These cases are consistent with the Supreme Court’s pronouncement that Title VII “on its face treats each of the enumerated categories” – race, color, religion, sex, and national origin – “exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9; see id. (noting that even though the case involved sex discrimination, its analysis “appl[ied] with equal force to discrimination based on race, religion, or national origin”). Other than the statutory exception for bona fide occupational qualifications, 42 U.S.C. § 2000e-2(e)(1), there is no basis in the legislative history or elsewhere for applying different criteria when analyzing claims of discrimination based on race and those based on sex.
Thus, the analysis of race-based associational discrimination described above should apply with equal force to claims of sex-based associational discrimination. As the Seventh Circuit held in Hively when it endorsed the application of an associational discrimination theory to a claim of sexual orientation discrimination under Title VII, “to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. No matter which category is involved, the essence of the claim is
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that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Hively, 853 F.3d at 349. If a plaintiff is in a relationship with someone of the same sex, and an adverse employment consequence results from that relationship, discrimination has occurred “because of [the plaintiff’s] … sex,” in violation of Title VII. 42 U.S.C. § 2000e-2(a); see Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring) (“[I]f it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same-sex couples.”).
Sexual orientation discrimination necessarily involves sex stereotyping, in violation of Title VII.
Sexual orientation discrimination necessarily involves sex stereotyping, as it results in the adverse treatment of individuals because they do not conform to the norm that men should be attracted only to women, and women only to men. Such discrimination is at heart based on gender stereotypes – indeed, it is “as clear a gender stereotype as any.” Christiansen, 852 F.3d at 206 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 346 (characterizing the plaintiff’s lesbianism as representing “the ultimate case of failure to conform to the female stereotype” in modern America). It therefore violates Title VII’s prohibition of discrimination against employees “because of … sex.” Price Waterhouse, 490 U.S. at 240 (citing 42 U.S.C. § 2000e-2(a)(1)).
Price Waterhouse involved a woman perceived by her employer to be insufficiently feminine. Six justices agreed that comments the defendant’s
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representatives made about the plaintiff – that she was “macho” and “overcompensat[ing] for being a woman,” and would have better chances of promotion to partnership at her firm if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” – indicated discrimination based on sex stereotypes that is illegal under Title VII. Id. at 235, 251. As the Court held, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251. This conclusion followed from the Court’s earlier recognition that Congress passed Title VII “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. (quoting Manhart, 435 U.S. at 707 n.13).
Many circuits have relied on Price Waterhouse in concluding that employers violate Title VII’s prohibition against sex discrimination when they discriminate against employees for failing to conform to gender-based stereotypes by acting in an effeminate or masculine manner or by wearing gender-nonconforming clothing. See, e.g., EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 459-60 (5th Cir. 2013) (en banc) (holding that liability was warranted under Title VII if a jury concluded harassment occurred because the victim “fell outside of [the harasser’s] manly-man stereotype”); Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (“After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would
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not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (“[T]he holding in Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine. … At its essence, the systematic abuse directed at [the plaintiff] reflected a belief that [he] did not act as a man should act.”); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (summarizing cases and concluding that “instances of discrimination against plaintiffs because they fail to act according to socially prescribed gender roles constitute discrimination under Title VII according to the rationale of Price Waterhouse”).
Intentional discrimination on the basis of the gender of an individual’s actual or desired partners – whether that individual is lesbian, gay, bisexual, or straight – necessarily implicates stereotypes relating to “proper” sex-specific roles in romantic and/or sexual relationships. The Seventh Circuit sitting en banc recently made this connection explicit, referring to lesbianism as “the ultimate case of failure to conform to the female stereotype” and concluding:
[A] policy that discriminates on the basis of sexual orientation … is based on assumptions about the proper behavior for someone of a given sex. … Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s
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prohibition against sex discrimination, if it affects employment in one of the specified ways. Hively, 853 F.3d at 346-47 (emphasis added). An increasing number of district courts have applied Price Waterhouse and come to the same conclusion. See, e.g., Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 269 (D. Conn. 2016) (“[S]tereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes, which can lead to discrimination based on what the Second Circuit refers to interchangeably as gender non-conformity. … [H]omosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 842 (W.D. Pa. 2016) (“[D]iscrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex’ ….”); Videckis, 150 F. Supp. 3d at 1160 (“Stereotypes about lesbianism, and sexuality in general, stem from a person’s views about the proper roles of men and women – and the relationships between them. Discrimination based on a perceived failure to conform to a stereotype constitutes actionable discrimination ….”); Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (finding that a homosexual plaintiff’s allegations that he was denied promotions and subjected to a hostile work environment because his sexual orientation “did not conform to the Defendant’s gender stereotypes associated with men” stated a sufficient claim to survive a motion to dismiss).
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This connection between sexual orientation and gender nonconformity applies even if the employee exhibits no other gender-nonconforming behavior. See Christiansen, 852 F.3d at 206 (Katzmann, C.J., concurring) (“[I]f gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim.”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what ‘real’ men do or don’t do.”); Heller, 195 F. Supp. 2d at 1222-24 (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle’s stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men. … That Cagle perceived Heller as being a lesbian does not compel a different outcome.”); Terveer, 34 F. Supp. 3d at 116 (holding that a complaint alleging the plaintiff’s “sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles” stated a valid claim of sex discrimination).
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II. Precedent and Practicality Also Justify Overruling Simonton En Banc. In addition to the three arguments above, several additional factors counsel in
favor of overruling Simonton and its progeny. First, the cases on which Simonton relied are largely no longer good law. Second, experience has shown that the distinction Simonton draws between valid gender nonconformity claims and invalid sexual orientation claims is unworkable in practice and leads to absurd results.
The cases on which Simonton relied are no longer good law. In concluding that Title VII does not prohibit sexual orientation discrimination, Simonton relied on a number of cases that were subsequently overruled, either implicitly or explicitly. Dawson, in turn, relied on Simonton for this point. The irreparable erosion of those decisions’ foundation further justifies overturning them en banc. Simonton cited three out-of-circuit cases in support of its conclusion that judicial decisions consistently “refus[e] to interpret ‘sex’ to include sexual orientation.” Simonton, 232 F.3d at 35-36 (citing DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 32932 (9th Cir. 1979); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996)). In light of subsequent Supreme Court decisions, however, none of these cases justifies retaining Simonton as binding precedent. See Price Waterhouse, 490 U.S. at 250-51; Oncale v. Sundowner Offshore Oil Servs., Inc., 523 U.S. 75, 79 (1998) (noting that Title VII’s protections extend beyond those the statute was initially enacted to combat, and cover
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“reasonably comparable evils” as well). DeSantis, which held that Title VII does not protect against discrimination based on sex stereotypes, 608 F.2d at 331-32, was abrogated by Price Waterhouse and is no longer good law. See Nichols, 256 F.3d at 875 (recognizing abrogation). Williamson, a four-paragraph decision from the Eighth Circuit that predates Price Waterhouse and Oncale,4 relies entirely on DeSantis without additional analysis. Williamson, 876 F.2d at 70. In a subsequent case reversing dismissal of a suit alleging harassment based on sex and “perceived sexual preference,” the Eighth Circuit discounted Williamson’s precedential authority, referring to it as a “pre-Oncale case.” Schmedding v. Tnemec Co., 187 F.3d 862, 864 n.3 (8th Cir. 1999). Wrightson relies exclusively on Williamson and DeSantis, and was dicta on this point in any event. Wrightson, 99 F.3d at 143. Thus, of the three cases Simonton cites to support its conclusion, two are no longer followed and the third relies wholly on the other two. These cases do not justify maintaining Simonton in the face of more recent legal developments.
Simonton and Dawson’s distinction between permissible sexual orientation discrimination and impermissible gender stereotyping is unworkable and leads to absurd results.
Simonton should be overruled for another, equally important reason: the distinction it draws between impermissible sex-based stereotyping and permissible
4 Although Williamson came down a month after Price Waterhouse was announced, all briefing was concluded before the Supreme Court issued its Price Waterhouse decision, the opinion does not mention Price Waterhouse, and there is no indication the panel considered the case’s potential impact on its decision.
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sexual orientation discrimination is unworkable and leads to absurd results. Under current Second Circuit law, employers cannot discriminate against employees based on an “animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender,” but can discriminate “because of sexual orientation.” Dawson, 398 F.3d at 217-18. Given that “homosexuality is the ultimate gender nonconformity, the prototypical sex stereotyping animus,” Boutillier, 221 F. Supp. 3d at 269, courts asked to differentiate between sex stereotyping and sexual orientation have understandably found the task difficult, if not essentially impossible. See Hively, 853 F.3d at 346 (“Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.”); Videckis, 150 F. Supp. 3d at 1159 (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”). Indeed, even this Court recognized the inherent difficulty in this sort of line-drawing, observing that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” Dawson, 398 F.3d at 218.
The distinction drawn in Simonton between valid claims based on gender nonconformity and invalid ones based on sexual orientation discrimination is inherently arbitrary, leading to irrational outcomes. In Simonton this Court cautioned against allowing plaintiffs to rely on a Price Waterhouse gender-nonconformity theory to
20

“bootstrap protection for sexual orientation into Title VII,” reasoning that the two are not interchangeable “because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Simonton, 232 F.3d at 38; see also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1259-60 (11th Cir. 2017) (Pryor, J., concurring) (distinguishing between homosexual status and homosexual conduct). But this leads to the absurd result that only those gay men who act “stereotypically feminine” and those lesbians who act stereotypically masculine are entitled to protection from discrimination. See Christiansen, 852 F.3d at 200; cf. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 287 (3d Cir. 2009) (focusing on plaintiff’s high voice, failure to curse, grooming, clothes, neatness, manner of crossing his legs, effeminacy, conversational interests, and degree of “pizzazz” when operating a work machine in determining whether the claimed discrimination was based on gender stereotypes rather than sexual orientation). In short, “[p]laintiffs who ‘look gay’ succeed under Title VII while those merely known or thought to be gay do not.” Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 766 (2014). Whether an individual is entitled to protection under federal law cannot turn on such an arbitrary factor.
It is similarly absurd to hold that Title VII protects persons like the heterosexual employee in Boh Brothers, 731 F.3d at 459-60, from egregious same-sex harassment but does not protect a homosexual man from similarly egregious harassment, as in Simonton. 232 F.3d at 35 (noting that the plaintiff was subjected to
21

vulgar, graphic comments and conduct). There is no justification for such a judicially created “carve-out” exception that offers protections to most individuals but denies them to gays and lesbians. Even more absurd, as the law now stands in this Circuit, employees are free to marry their same-sex partners, as the Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), but can lawfully be fired the next day for doing so. Overruling Simonton and holding that Title VII protects against sexual orientation discrimination would eliminate these inconsistent and arbitrary results. III. The Contrary Arguments Do Not Justify Retaining Simonton as Binding
Authority. Opponents to the EEOC’s position have raised two additional arguments – based in part on Simonton itself – against finding that Title VII’s ban on sex discrimination extends to sexual orientation discrimination. Neither provides a sufficient justification to retain Simonton as the law of this Circuit. First, some have argued that Title VII would not have been reasonably understood to protect against sexual orientation discrimination when Congress enacted it in 1964. See, e.g., Hively, 853 F.3d at 360-63 (Sykes, J., dissenting). But as the Supreme Court clearly held when discussing Title VII, “[S]tatutory prohibitions often go beyond the principal evil [the law was passed to address] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79; see also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 381 (1977) (Marshall, J.,
22

concurring in part and dissenting in part) (explaining that “[t]he evils against which [Title VII] is to be aimed are defined broadly”). Indeed, the Court has taken this approach repeatedly when interpreting Title VII. It has recognized, for example, that the statute’s prohibition against discrimination in the terms and conditions of employment encompasses sexual harassment of an employee, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and that the term “because of … sex” can include same-sex harassment, see Oncale, 523 U.S. at 79-80, though Congress likely considered neither issue when it initially passed the law. As explained above, in cases of sexual orientation discrimination, “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (internal quotation marks omitted). This situation “meets the statutory requirements” of Title VII and warrants its protections, regardless of Congress’s interpretation in 1964. Id. As the Seventh Circuit explained in Hively, an en banc court “sits … to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.” Hively, 853 F.3d at 350.
Second, the panel in Simonton emphasized the fact that Congress has not enacted bills that would have explicitly extended Title VII to prohibit sexual orientation discrimination. Simonton, 232 F.3d at 35; Evans, 852 F.3d at 1261 (Pryor, J., concurring). But the Supreme Court has made clear that the outcome of legislative efforts to amend Title VII over the years says nothing about what the existing statute
23

prohibits. As the Court explained, “[S]ubsequent legislative history is . . . a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns . . . a proposal that does not become law,” because “several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990). With respect to failed proposals to offer explicit workplace protections on the basis of sexual orientation, it is possible legislators objected to the proposed addition of other protections as well, or disagreed with the language of proposed exemptions, or did not think the proposed protections extended far enough. See, e.g., Jill D. Weinberg, Gender Non-Conformity: An Analysis of Perceived Sexual Orientation & Gender Identity Protection Under the Employment NonDiscrimination Act, 44 U.S.F. L. Rev. 1, 8 (2009) (noting that the proposed Equality Act of 1974 would have added protections on the basis of both sexual orientation and marital status); Kate B. Rhodes, Defending ENDA: The Ramifications of Omitting the BFOQ Defense in the Employment Non-Discrimination Act, 19 Law & Sexuality 1, 4, 8-11 (2010) (noting opposition to one version of the Employment Non-Discrimination Act based on its failure to protect transgender individuals, as well as debate over the scope of exemptions). In short, “we have no idea what inference to draw from congressional inaction or later enactments, because there is no way of knowing what explains each individual member’s votes, much less what explains the failure of the body as a whole to change this 1964 statute.” Hively, 853 F.3d at 344.
24

CONCLUSION For the foregoing reasons, Simonton should be overruled, the judgment of the district court should be reversed, and the case should be remanded for further proceedings.
Respectfully submitted, JAMES L. LEE Deputy General Counsel JENNIFER S. GOLDSTEIN Associate General Counsel ANNE NOEL OCCHIALINO Senior Appellate Attorney /s/ Jeremy D. Horowitz JEREMY D. HOROWITZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., Room 5SW24J Washington, D.C. 20507 (202) 663-4716 jeremy.horowitz@eeoc.gov
25

CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(a)(5) and Second Circuit Local Rules 29.1(c) and 32.1(a)(4)(A). This brief contains 6,096 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2016 word processing program, with 14-point proportionally spaced type for text and footnotes.

Dated: June 23, 2017

/s/ Jeremy D. Horowitz JEREMY D. HOROWITZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., Room 5SW24J Washington, D.C. 20507 (202) 663-4716 jeremy.horowitz@eeoc.gov

26

CERTIFICATE OF SERVICE I, Jeremy D. Horowitz, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system and filed 15 copies of the foregoing brief with the Court by next business day delivery, postage pre-paid, this 23rd day of June, 2017. I also certify that all counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system.
/s/ Jeremy D. Horowitz JEREMY D. HOROWITZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. N.E., Room 5SW24J Washington, D.C. 20507 (202) 663-4716 jeremy.horowitz@eeoc.gov
27

 
 15-3775 


UNITED STATES COURT OF APPEALS 
 FOR THE SECOND CIRCUIT 


MELISSA ZARDA AND DONALD MOORE AS INDEPENDENT CO-EXECUTORS OF THE ESTATE OF DONALD ZARDA, Plaintiffs-Appellants, - against
ALTITUDE EXPRESS d/b/a SKYDIVE LONG ISLAND and RAYMOND MAYNARD, Defendants-Appellees.
On Appeal from the United States District Court for the 
 Eastern District of New York 


BRIEF OF NEW YORK STATE UNITED TEACHERS 
 AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS 


Robert T. Reilly,
Wendy M. Star,* Christopher Lewis,*
Of Counsel
* Admission Pending

Richard E. Casagrande 
 Attorney for Amicus Curiae 
 New York State United Teachers 
 800 Troy-Schenectady Road, 

Latham, NY 12110-2455 
 (518) 213-6000

TABLE OF CONTENTS 

Page No. 
 RULE 26.1 DISCLOSURE STATEMENT ............................................................. 1 
 RULE 35(b) STATEMENT OF COUNSEL ........................................................... 1 
 TABLE OF CASES & AUTHORITIES .................................................................. ii 
 STATEMENT OF INTEREST ................................................................................ 3 
 ARGUMENT 

I. THE COURT'S DECISION LEAVES NYSUT'S MEMBERS WITHOUT 
 THE FULL PROTECTION OF THE CIVIL RIGHTS ACT ........................ 4 
 A. Sexual Orientation Discrimination is Sex Discrimination .................... 5 
 B. Sexual Orientation Discrimination is Sex Stereotyping ........................ 8 
 C. Sexual Orientation Discrimination is Associational Discrimination .. 12 

II. ALL NYSUT MEMBERS SHOULD HAVE EQUAL ACCESS TO 
 STATE AND FEDERAL FORA TO BRING CLAIMS OF SEX 
 DISCRIMINATION .................................................................................... 15 

CONCLUSION ...................................................................................................... 17 
 CERTIFICATE OF COMPLIANCE ..................................................................... 18 

- 1­

TABLE OF CASES & AUTHORITIES 
 CASES 
 Pagels)
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 
 (2d Cir. 2004) ........................................................................................................... 9 
 Baldwin v. Foxx, 2015 WL 4397641, at *4-*5 (E.E.O.C. July 15,2015) ..... 6,7,15 
 Boutillier v. Hartford Pub. Schs., No. 3:13CV1303 WWE, 
 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014) ............................................... 7 
 Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ......................................... 7 
 City o/Los Angeles Dept. o/Water & Power v. Manhart Stations, 
 435 U.S. 702, n.13 (1978) .................................................................................. 9,12 
 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d. Cir 2005) ............................. 2, 11 
 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..................................................... 5 
 Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212 
 (D. Or. 2002) ............................................................................................................ 7 
 Hively v. Ivy Tech. Comm. Coli., 853 F.3d 339 (7th Cir. April 4, 2017) ....... 2, 7, 11 
 Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) ............................. 13, 14, 15 
 Isaacs v. Felder Servs., LLC, 143 F.Supp.3d 1190 (M.D. Ala. 2015) ..................... 7 
 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) .............................................. 8 
 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) ..................... 7, 8 
 Philpott v. New York, No. 16-cv-6778, 2017 WL 1750398 
 (S.D.N.Y. May 3, 2017) .......................................................................................... 7 

- 11 ­

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................ 8, 9 
 Richardson v. New York State Dep 't of Correctional Serv., 
 180 F.3d 426, n.2 (2d Cir. 1999) ............................................................................ 13 
 Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ............................................ 10 
 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ................................ 2, 5, 8, 11, 13 

us. Equal Employment Opportunity Commission v. 

Scott Medical Health Ctr. P.c., 217 F.Supp.3d 834 
 (W.D. Penn. Nov. 4, 2016) ........................................................................................7 
 Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151(C.D. CaL 2015) ....................... 7 
 Winstead v. Lafayette Cty. Bd. ofCty. Comm'rs, 
 197 F.Supp.3d 1334 (N.D. Fla. 2016) ....................................................................... 7 
 Zarda v. Altitude Express, 855 F.3d 76 (2d. Cir. 2017) ...................................... 1,2 

STATUES Title VII of the Civil Rights Act of 1964, 
 42 U.S.C. §§2000e ........................................... 1,2,3,4, 7, 9,11,12,13, 14, 15, 17 
 42 U.S.C. §2000e-2(a)(1 ) .................................................................................... 4, 13 
 New York State Human Rights Law ("NYSHRL") .............................................. 16 
 N.Y. Exec. Law §297 ............................................................................................. 16 
 New York City Human Rights Law ....................................................................... 16 
 N.Y.C. Admin. Code §8-120 ................................................................................. 16 

- 111 ­

UNITED STATES COURT OF APPEALS 
 FOR THE SECOND CIRCUIT 

MELISSA ZARDA & WILLIAM MOORE, EXECUTORS, ESTATE OF 
 DONALD ZARDA, 
 Plaintiffs-Appellants, 
 -against-

ALTITUDE EXPRESS & RAYMOND MAYNARD, 
 Defendants-Appellees 

AMICUS CURIAE BRIEF OF NEW YORK STATE UNITED TEACHERS
Corporate Disclosure Statement Amicus curiae New York State United Teachers ("NYSUT") has no parent corporation(s), does not have shareholders, and does not issue stock.
Rule 35(b) Statement of Counsell The Court's decision, which held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et. seq. does not extend to discrimination on the basis of sexual orientation, should be reversed. Zarda v. Altitude Express, 855 F.3d 76 (2d.
1 Pursuant to Fed. R. App. P. 29(a)(4)(E), no party's counsel authored this brief in whole or in part. No party, party's counsel, or other person - other than amicus curiae, its members, or its counsel - has contributed money intended to fund preparing or submitting the brief.
1

Cir. 2017). Although the Court relied upon its own precedent, that precedent can no longer stand in light of more recent jurisprudence from across the nation, and this court, sitting en banc, can and should reverse it. Specifically, the Court's prior rulings in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d. Cir 2005) directly conflict with the recent authoritative decision of the Seventh Circuit. On April 4, 2017, the United States Court of Appeals for the Seventh Circuit sitting en banc reversed its precedent in Hively v. Ivy Tech. Comm.Coll., 853 F.3d 339 (ih Cir. 2017), and held that sex discrimination under Title VII does include discrimination on the basis of sexual orientation. This question, whether Title VII's prohibition on sex discrimination encompasses sexual orientation discrimination, is one of exceptional importance to the plaintiff and the amicus. Therefore, the Second Circuit should now join the Seventh Circuit and hold that sex discrimination under Title VII includes discrimination on the basis of sexual orientation.
2 


Statement of Interest The issue presented by this case is of great importance to the over 675,000 active public and private sector members of New York State United Teachers ("NYSUT"), all of whom are employees in New York who rely on Title VII for protection from employment discrimination. NYSUT represents employees who are teachers and other school-related professionals such as social workers, school secretaries, guidance counselors, teaching assistants and numerous other dedicated individuals within the schools. NYSUT further represents professors and other professional employees at State University of New York ("SUNY"), City University of New York ("CUNY"), at thirty-five community colleges and other institutions of higher learning. NYSUT additionally represents a wide range of employees in the private-sector, including teachers, nurses, aides, child-care providers, and other human services employees. Because it represents so many employees covered by Title VII, NYSUT has a significant and substantial interest in ensuring that all of its members are afforded full protections under the law against illegal discrimination. Indeed, the NYSUT Constitution requires it to, among other things, expose and fight all forms of racism and discrimination. NYSUT also has an interest in guaranteeing that its members have access to the forum of their choice, in the event they do face such
3 


discrimination. Finally, NYSUT has an interest in confirming that its members are able to pursue the full range of remedies available to those hurt by employment discrimination. These interests extend to NYSUT's lesbian, gay, and bisexual ("LGB") members.
The Court's decision on this matter will greatly impact the protections against illegal discrimination and the remedies available to hundreds of thousands of employees in New York that NYSUT represents as members. Accordingly, NYSUT respectfully submits this amicus curiae brief in support of PlaintiffsAppellants.
ARGUMENT THE COURT'S DECISION LEAVES NYSUT'S LGB MEMBERS
WITHOUT THE FULL PROTECTION OF THE CIVIL RIGHTS ACT
The landmark Civil Rights Act of 1964 ("the Act") provides protection against discrimination on the basis of race, color, religion, national origin, and sex. Title VII of the Act makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex." 42 U.S.C. § 2000e­ 2(a)(l). Under the plain meaning of the Act, when making hiring, firing, or other
4 


employment decisions, employers may not discriminate against their employees by taking into account their sex.
However, under this Court's precedent, LGB individuals who face sex-based discrimination at work do not have full recourse to assert a claim under Title VII. Those employees lack the same breadth of protection possessed by their heterosexual peers. Such employees face the risk of adverse employment action motivated by sex-based discrimination and have no recourse under the Act, solely because they are not heterosexuaL
This reality contravenes the purpose of the Act: "to provide equality of employment opportunities." Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971). Under the decisions issued by this Court, LGB individuals do not possess such equality, due to their inability to assert the rights guaranteed to them by the Act to the same extent as their heterosexual peers. Such equality cannot be achieved unless and until this Court's revisits its decisions in Simonton and its progeny, and affords LGB employees the full rights guaranteed to them by the Act.
A. Sexual Orientation Discrimination is Sex Discrimination
Discrimination on the basis of sexual orientation is, by definition, discrimination on the basis of sex. But, it is not actionable under this Court's decisions. It is impossible, however, to distinguish a claim of sexual orientation
5 


discrimination from a claim of sex discrimination, because an individual's orientation necessarily requires reference to his or her sex.
For example, an individual attracted to men cannot be said to be gay or straight without knowledge and mention of his or her gender. Sex and sexual orientation are so entwined that one simply cannot be discussed or considered without reference to the other. An employer taking an adverse employment action against an employee on the basis of his or her sexual orientation is, clearly, also basing that decision on the employee's sex. Put simply, an action taken against a male employee attracted to other men that would not have been taken against a similarly-situated female employee member attracted to men is discrimination on the basis of sex because the only difference between the two employees is that one is male and the other is female. All forms of sex discrimination are prohibited by the Act and, therefore, an employer's discrimination on the basis of sexual orientation also should be actionable.
Notably, the Equal Employment Opportunity Commission ("EEOC") recently recognized that sex and sexual orientation are inescapably interconnected and cannot be considered in isolation. Baldwin v. Foxx, 2015 WL 4397641, at *4­ *5 (E.E.O.C. July 15, 2015). Furthermore, the EEOC concluded that "allegations of discrimination on the basis of sexual orientation necessarily state a claim on the basis of sex." Id. at *7. This is because of the direct relation between sex
6 


stereotypes of who a "real" man or woman should date. See Baldwin, at *8; Centola v. Potter, 183 F. Supp. 2d 403,410 (D. Mass. 2002).
Other courts have similarly adopted the common sense conclusion that an adverse employment action motivated by sexual orientation discrimination is, fundamentally, discrimination on the basis of sex. Hively v. Ivy Tech. Comm. Coli., 853 F.3d 339 (7th Cir. April 4, 2017)(en bane); Philpott v. New York, No. 16-cv­ 6778, 2017 WL 1750398 (S.D.N.Y. May 3, 2017); Winstead v. Lafayette Cty. Bd. of Cty. Comm'rs, 197 F.Supp.3d 1334, 1341-47 (N.D. Fla. 2016); Us. Equal Employment Opportunity Commission v. Scott Medical Health Ctr. P.e., 217 F.Supp.3d 834 (W.D. Penn. Nov. 4, 2016); Isaacs v. Felder Servs., LLC, 143 F.Supp.3d 1190, 1193-94 (M.D. Ala. 2015); Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1159-61 (C.D. CaL 2015); Boutillier v. Hartford Pub. Schs., No. 3:13CV1303 WWE, 2014 WL 4794527, at *2 (D. Conn. Sept. 25, 2014); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D. Or. 2002). These courts have recognized that Title VII provides recourse for all employees victimized by sex discrimination.
In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) Justice Scalia, writing for a unanimous Court, held that employees could assert a claim of sexual harassment against individuals of the same sex. Oncale, at 79. Specifically, the Court could "see no justification in the statutory language or [their] precedents
7

for a categorical rule excluding same-sex harassment claims from the coverage of Title VII." Id. It has long been held that sexual harassment is sex discrimination prohibited by the Act. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 73 (1986). According to the Supreme Court, claims under Title VII may result from interactions between members of the same sex. There is no reason, under the language of the Act or binding precedent, to only allow such claims to be asserted in cases of sexual harassment, rather than all forms of sex discrimination, including sex discrimination based on sexual orientation.
Unfortunately, this Court rejected that common sense argument in Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000). NYSUT urges the Court en bane to reconsider that decision. It is illogical that, under the Act, employees have recourse if they are victimized following rejection of sexual advances by a same-sex supervisor, but have no such recourse if that same supervisor discriminates against the employee for being in a same-sex relationship or being attracted to members of the same sex.
B. Sexual Orientation Discrimination is Sex Stereotyping The protections under Title VII apply, of course, when there is direct evidence of sex discrimination, but they also apply to adverse employment actions motivated by the employee's failure to comply with sexual stereotypes. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that
8

employers may not rely upon such stereotypes when making employment decisions. In that decision, the Court reiterated its holding in City ofLos Angeles Dept. of Water & Power v. Manhart Stations that "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." 435 U.S. 702, n.13 (1978) (internal citations omitted) (emphasis added). The employee in Price Waterhouse asserted that her employer denied her a promotion on the grounds that she was "macho," used profanity, and otherwise exhibited traditionally "masculine" traits. Price Waterhouse, at 235. In holding that her claim was actionable, the Court concluded that it is "beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group." Id. at 251. In other words, an employer who takes an adverse employment action against an employee on the basis that he or she does not conform with the employer's conception of how individuals of that sex should look, speak, or act is in violation of the Act's prohibition against sex discrimination.
In examining sex-stereotyping claims brought by employees, this Court has held that the question of what constitutes a stereotype "must be answered in the particular context in which it arises, and without undue formalization." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 120 (2d Cir. 2004). In
9 


determining whether an adverse employment action resulted from prohibited sex­ stereotyping, courts must look at the particularized facts surrounding the allegation to determine the motive behind the adverse action. Id. Clearly, the view that women cannot both be good mothers and hold jobs with long hours is discriminatory. Id.
Applying that rule here, it is plainly evident that adverse employment actions based on an employee's sexual orientation is necessarily based in that employee's failure to comport with a sex stereotype. Namely, that men should be attracted to women, and women should be attracted to men.
Yet LGB employees cannot assert a claim of sex stereotype discrimination to the same extent as their heterosexual colleagues. A heterosexual employee can put forth a claim that they have been discriminated against due to a real or perceived failure to comport with any trait stereotypically associated with his or her gender. For example, this Court found a valid claim of discrimination where supervisor commented on propensity of men to commit sexual harassment. Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009).
Under this Court's existing precedent, LGB employees do not have the same broad right to allege sex stereotype discrimination as straight employees have, given that they cannot allege that their employee's adverse employment action was motivated by their non-compliance with gendered attraction stereotypes. In
10 


Simonton v. Runyon, this Court held that under Title VII of the Act, a sexual orientation claim could not be "bootstrapped" into a sex stereotyping claim. 232 F.3d 33, 38 (2d Cir. 2000). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005). This is plainly incorrect; it conflicts with both the stated purpose of the Act and the decisions issued by this Court addressing sex stereotyping.
LGB employees and other employees, asserting sex stereotyping would not be "bootstrapping" their claims, but asserting rights under Title VII that belong to all employees, regardless of their sexual orientation. There is nothing in the Act to suggest that LGB individuals cannot claim discrimination due to their failure to comply with traditional stereotypes of gender attraction while, hypothetically, any other individual can claim discrimination due to a failure to comply with any other sex stereotype. Yet this is the result following this Court's decisions in Simonton and its similar cases. A heterosexual employee hurt by any sex stereotyping has a claim under Title VII, but an LGB employee is limited in the type of sex stereotyping he or she can allege.
Indeed, other courts have recognized the illogic and impracticality of drawing a line between discrimination based on nonconformity with gender-based sexual orientation norms and all other such norms. E.g., Hively, at 346. The Seventh Circuit recently held that a claim alleging non-compliance with sexual
11 


orientation stereotypes "is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing." Id.
Title VII plainly prohibits all adverse employment actions that rely upon consideration of sex stereotypes, including the stereotype that men and women should be attracted to members of the opposite sex. According to the Supreme Court, Congress intended the Act to combat the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Manhart, at 707 (internal citations omitted) (emphasis added). By extending stereotyping protection to those who do not confonn to traditional standards of gender attractiveness, this Court would be fulfilling that Congressional purpose for employees subject to, or potential1y subject to, discrimination due to that non­ conformance.
c. Sexual Orientation Discrimination is Associational Discrimination
This Court's precedent also 1eaves LGB individuals without recourse under the Act if they are victimized by "associational discrimination," or discrimination not on the basis of the employee's own gender but, rather, on the gender of their romantic partner. This Court has recognized associational discrimination as actionable since 2008, when it found that "an employer may violate Title VII if it takes action against an employee because of the employee's association with a
12 


person of another race." Holcomb v. lona College, 521 F.3d 130, 138 (2d Cir. 2008). In that case, this Court reversed the decision of the district court that employees cannot assert a claim under Title VII when they allege discrimination on the basis of being in an interracial relationship. Specifically, it was held that such individuals may assert such a claim because the employee would not have faced such discrimination had they been a member of the same race as their spouse. ld. at 139.
Under Simonton and this Court's related decisions, a NYSUT member has no claim under the Act if he or she faces employment discrimination for being in a relationship with an individual of the same sex. The same standard applies to both race and sex-based claims brought under the Act. See, e.g., Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 436, n.2 (2d Cir. 1999). Indeed, there is nothing in the language of the Act or in any relevant case law establishing any distinction between claims alleging racial discrimination and those alleging sex discrimination, and there is no justification for allowing associational discrimination claims on the grounds of race but not sex. The Act prohibits adverse employment action motivated by an employee's membership in a protected class, including both race and sex. 42 U.S.C. § 2000e-2(a)(1). There is no dividing line between race-based and sex-based claims, so there should be no
13 


reason that the logic of decisions in race discrimination cases should not be equally applicable to those alleging sex discrimination.
The Act does not expressly prohibit discrimination on the basis of being in an interracial relationship, but such discrimination has been prohibited by this court since it issued its decision in Holcomb. The Act also does not expressly prohibit discrimination on the basis of being in a same-sex relationship, but this Court has not extended similar protection to that circumstance. This Court has not yet recognized that, under the Act and its own case law, there is no justification to extend protection against associational discrimination on the basis of race but not on the basis of sex.
This leaves LGB employees without the full protection guaranteed to them by the Act. Straight employees in interracial relationships are plainly protected from discrimination due to their non-conformance with traditional race-based norms of relationships. But LGB employees, who also do not conform to traditional relationship norms, are left without such protection. The Act, however, makes clear that employment discrimination is prohibited when based on either race or sex. The relevant provisions of Title VII apply to both race-based claims and sex-based claims. As such, NYSUT respectfully requests that the Court extend its holding from Holcomb to include associational discrimination on the basis of sex.
14 


II. ALL NYSUT MEMBERS SHOULD HAVE EQUAL ACCESSS TO STATE AND FEDERAL FORA TO BRING CLAIMS OF SEX DISCRIMINATION
As discussed above, discrimination on the basis of sexual orientation IS discrimination on the basis of sex prohibited under Title VII and, therefore, should be actionable. In fact, as noted above, the EEOC has already taken the position that "an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin, 2015 WL 4397641 *at 5. The EEOC correctly reached this determination because discrimination on the basis of sexual orientation typically involves stereotyping about the proper sex of who should be in romantic relationships.
Title VII protections should extend to all employees under a plain reading of the Act and subsequent decisions interpreting it. Now, LGB employees who face illegal discrimination in the workplace can only seek protections under Title VII if they assert a sex stereotyping claim. Thus, employers can blatantly argue that they discriminated against employees not due to a sex stereotype but due to their sexual orientation. Therefore, the law, as it stands, leaves LGB employees vulnerable to illegal adverse employment action without the reassurance that they are protected from that which Title VII aims to prevent.
Additionally, although employees can avail themselves of the state and local statutes covering sexual orientation discrimination, such as New York State
15 


Human Rights Law ("NYSHRL"), N.Y. Exec. Law §297 et. ai., and New York City Human Rights Law ("NYCRHL"), N.Y.C. Admin. Code §8-120, there are differences amongst the statutes with respect to available remedies. Notably, punitive damages are not obtainable under the NYSHRL leaving employees outside of New York City without the ability to obtain such a remedy at all. LGB employees who have been discriminated against in their employment because of their sex should not be limited to a particular forum but should, instead, possess the same right to forum selection held by their heterosexual peers. NYSUT urges this Court to extend Title VII to cover sexual orientation discrimination, as such claims clearly fall within the coverage of discrimination "because of sex."
16 


CONCLUSION 


This Court should hold that sexual orientation discrimination is

discrimination on the basis of sex and, therefore, prohibited by Title VII. Sexual

orientation discrimination is sex discrimination on grounds contemplated by other

courts and in the broad language of Title VII. The Court's unworkable precedent

in Simonton should be overturned.

Dated: June 23, 2017 Latham, NY

Richard E. Casagrande Attorney for Amicus Curiae New York State United Teachers 800 Troy-Schenectady Road Latham, NY 12110-5t455 (518) 213-6000

By: ROBERTT.
WENDYM.S CHRISTOPHER L Of Counsel
* Admission Pending

17 


CERTIFICATION PURSUANT TO LOCAL RULES 
 Pursuant to Fed. R. App. P. 32(a)(7)(c), the undersigned hereby certifies that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). 1. Exclusive of the exempted portions of the brief, as provided in Fed. R. App. P. 32(a)(7)(B), the brief contains 3,309 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed. R. App. P. 32(a)(7)(c)(i), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. Dated: June 23, 2017
ROBERT Attorney fo New York State United Teachers 800 Troy-Schenectady Road Latham, NY 12110-2455 (518) 213-6000
18 


CERTIFICATE OF SERVICE 
 The undersigned certifies that on June 26, 2017, they electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the Court's CMJECF system. The undersigned certifies that all participants in the case are registered CMJECF users and that service will be accomplished by the CMJECF system.

Dated: June 26, 2017

Attorney for Amicus urzae New York State United Teachers 800 Troy-Schenectady Road Latham, NY 12110-2455 (518) 213-6000

19 


 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD, Defendants-Appellees.
On Appeal from the U.S. District Court for the Eastern District of New York Hon. Joseph Bianco, Judge
BRIEF OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL

GREGORY R. NEVINS

OMAR GONZALEZ-PAGAN

LAMBDA LEGAL DEFENSE AND

SHARON M. MCGOWAN

EDUCATION FUND, INC.

LAMBDA LEGAL DEFENSE AND

730 Peachtree Street NE, Suite 640

EDUCATION FUND, INC.

Atlanta, Georgia 30308

120 Wall Street, 19th Floor

(404) 897-1880

New York, New York 10005

(212) 809-8585

MICHAEL D.B. KAVEY

ATTORNEY AT LAW

144 North 7th Street #235

Brooklyn, New York 11249

(917) 623-8884

Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

CORPORATE DISCLOSURE STATEMENT Amicus curiae Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) has no parent corporation(s), does not have shareholders, and does not issue stock.
ii

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .........................................................2 TABLE OF CONTENTS ........................................................................................3 TABLE OF AUTHORITIES ..................................................................................5 STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................3
I. SEXUAL ORIENTATION DISCRIMINATION IS A FORM OF SEX DISCRIMINATION.............................................................3
A. When Employers Discriminate Based On Sexual Orientation, They Necessarily Consider An Employee’s Sex. ......................................4
B. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII. ........................6
C. Tite VII Protects All Employees, Including LGB Employees, From Discrimination Based On Sex Stereotypes.......................................8
D. The Statutory Text And The Changed Legal Landscape Support Title VII Coverage of Sexual Orientation. ...................................9
II. ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL ORIENTATION DISCRIMINATION ARE WITHOUT MERIT. ..............12
A. The Hively Dissent Poses the Wrong Questions, and Misapplies Doctrines of Statutory Interpretation.....................................12
B. The Correct Comparator to a Man Attracted to Men is a Woman Attracted to Men. .................................................................16
1. Analogies to Interracial Association Cases Are Apt................................16 2. Manhart makes clear that the proper comparator in
this case is a woman attracted to men. ....................................................19 C. That Discrimination Based on Sex Stereotypes is
Prohibited by Title VII is Firmly Settled Law. ........................................22 D. Antigay Discrimination is Actionable Under Title VII
Under a Simple Sex-Plus Theory. ............................................................23
iii

E. Statutory Stare Decisis Is Of Relatively Little Weight in the Context of Courts of Appeals Decisions and of No Relevance When Such Decisions Conflict With Supreme Court Precedent. ............24
F. Courts Must Condemn All Discrimination “Because of . . . Sex,” Irrespective of Whether the Discrimination is Motivated by a Person’s Status, Behavior, Or Some Combination Thereof. ...................26
CONCLUSION ........................................................................................................28 CERTIFICATE OF COMPLIANCE.......................................................................30 CERTIFICATE OF SERVICE ................................................................................31
iv

TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .............................................................................................18
Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015) ..................................................................11
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) ............................................................ 4, 9, 21, 22, 27
Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. 2015) .........................5, 6
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016) ..............................................................7, 17
Bragdon v. Abbott, 524 U.S. 624 (1998) ...............................................................................................1
Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) .................................................................................21
Connecticut v. Teal, 457 U.S. 440 (1982) .............................................................................................23
Centola v. Potter, 5 183 F. Supp. 2d 403 (D. Mass. 2010)................................................................19
Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010) .............................................................................................27
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ......................................................................... passim
City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ..................................................................................... passim
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .............................................................. 2, 3, 7, 10, 11
v

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)..........................................................................................28
EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc) ................................................................22
EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ..............................................................2, 17
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending ................. passim
Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016) ..................................................................14
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...............................................................................................7
Foray v. Bell Atlantic, 56 F. Supp. 2d 327 (S.D.N.Y. 1999) ....................................................................10
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ........................................................................2, 22
Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) .....................2, 6
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002).......................................................................6
Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc) ........................................................ passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) .................................................................. 7, 8, 13, 21
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015)...........................................................6, 17
Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015)..........................................................................................24
vi

Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) ................................................................6
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................ 1, 10, 25, 26
Lewis v. City of Chicago, 560 U.S. 205 (2010) .............................................................................................28
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................... 16, 17, 18
McLaughlin v. Florida, 379 U.S. 184 (1964) .............................................................................................17
Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) .................................................................................................8
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ...............................................................................................5
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................................... 1, 10, 11, 25, 26
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) ...................................................................................... 8, 9, 28
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) ..............................................................................13
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) ............................................................................ 4, 20, 21, 27
Pond v. Braniff Airways, Inc., 500 F.2d 161 (5th Cir. 1974) ................................................................................27
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .......................................................................... 3, 7, 8, 11, 22
Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc) ................................................................2
vii

Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015)..................................................................10
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................. 1, 25, 26
Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ...................................................................... 9, 11, 22
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ................................................................ 2, 3, 7, 10, 11
Smiley v. Citibank N.A., 517 U.S. 735 (1996) .............................................................................................15
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ................................................................................11
Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988) ...................................................................................27
Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971) ..............................................................................26
TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014)..........................................................................2
Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) .............................................................................................28
Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976)............................................................................14
United States v. Windsor, 133 S. Ct. 2675 (2013)............................................................................... 1, 25, 26
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) .....................................................................................5
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015)............................................................6, 19
viii

Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016) .................................................................................16
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .............................................................................................27
Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007)............................................................................8
Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976)...........................................................................14
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013).......................... 11, 26
Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017) .................................................................................3, 5
Statutes 20 U.S.C. § 1092(f)(1)(F)(ii) ...................................................................................15 42 U.S.C. § 13925(b)(13)(A) ...................................................................................13 42 U.S.C. § 2000e et seq............................................................................................2 42 U.S.C. § 2000e-2(a)(1)..........................................................................................2 42 U.S.C. § 2000e-2(e) ..............................................................................................7 42 U.S.C. § 2000e-2(m) .........................................................................................3, 5
Rules Fed. R. App. P. 29(a)(4)(E)........................................................................................1 Fed. R. App. P. 29(b)(4) ..........................................................................................30 Fed. R. App. P. 32(a)(5)...........................................................................................30 Fed. R. App. P. 32(a)(6)...........................................................................................30 Fed. R. App. P. 32(g) ...............................................................................................30
ix

Fed. R. App. P. 32(g)(1) ..........................................................................................30 L.R. 29.1(b)................................................................................................................1
Other Authorities Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and
Gay Rights, 49 U.C.L.A. L. Rev. 519 (2001)...........................................................................17 Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-257 (1994......................................................... 18, 19 Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012).............................................................................13 Frank Easterbrook, Stability & Reliability in Judicial Decisions, 73 Cornell L. Rev. 422 (1988)..............................................................................24 Gary Mucciaroni, Same Sex, Different Politics: Success and Failure in the Struggles over Gay Rights (2008)..................................................14 Matt Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act ‘Unecessary,’ Mediaite (Nov. 14, 2013) .....................................................................................25 Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).............................................2 Plaintiffs-Appellants' Pet. for Reh’g En Banc, Zarda v. Altitude Express, No. 15-3775 (2d Cir. May 2, 2017) (ECF No. 255)...............................................1 Sexual Orientation, Oxford English Dictionary (2009 ed.)..................................................................12
x

STATEMENT OF INTEREST1 Formed in 1973, Lambda Legal Defense and Education Fund, Inc. is the nation’s oldest and largest legal organization committed to achieving full recognition of the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) people and everyone living with HIV through impact litigation, education, and public policy
work. Lambda Legal has served as counsel or amicus in seminal cases regarding the rights of LGBT people and people living with HIV. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539 U.S. 558 (2003); Bragdon v. Abbott, 524 U.S. 624 (1998); Romer v.
Evans, 517 U.S. 620 (1996). Of special relevance here, Lambda Legal successfully represented the
plaintiff-appellant in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc), in which the Seventh Circuit recently held en banc “that discrimination on the basis of sexual orientation is a form of sex discrimination.” Id. at 341. It has also served as counsel or amicus curiae in many other employment
1 Amicus certifies that no party’s counsel authored this brief in whole or in part, and no person other than Amicus, its members, or its counsel made a monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(a)(4)(E); L.R. 29.1(b). Amicus’s counsel assisted with the petition for rehearing en banc in this case, see Plaintiffs-Appellants’ Pet. for Reh’g En Banc at 17, Zarda v. Altitude Express, No. 15-3775 (2d Cir. May 2, 2017) (ECF No. 255); this brief, however, reflects solely the work of Amicus’s counsel.
1

discrimination cases involving the rights of LGBT people. See, e.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending; Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ; Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014); TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).
Amicus files this brief pursuant to the Court’s May 25, 2017 Order inviting “amicus curiae briefs from interested parties.” See Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).
INTRODUCTION In enacting Title VII, 42 U.S.C. § 2000e et seq., Congress established a statutory imperative to extinguish discrimination in employment “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Now, this Court sitting en banc must decide whether Title VII’s prohibition against sex discrimination encompasses sexual orientation discrimination claims. The panel in this case felt bound by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), both of which rejected Title VII coverage of sexual orientation; the panel thus adhered to a Title VII interpretation allowing employers to fire male employees, such as Donald Zarda, based on their attraction to men, even where
2

women with identical attractions face no such adverse treatment, see Zarda v. Altitude Express, 855 F.3d 76, 80-82 (2d Cir. 2017). However, neither Simonton nor Dawson—nor any other opinion of this Court—has addressed the multiple “persuasive” reasons that support a holding that Title VII’s bar on sex discrimination encompasses antigay discrimination. See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring). This full Court should endorse these “persuasive” arguments and overrule Simonton and Dawson, thereby bringing this Court’s caselaw into compliance with Title VII’s mandate to “treat[] each of the enumerated categories exactly the same,” Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989) (plurality), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(m), and fulfilling the Court’s obligation to entertain all claims alleging adverse treatment in employment based on “sex-based considerations.” Id. at 242.
ARGUMENT After elaborating in Part I on the principal rationales supporting Title VII coverage of sexual orientation, Part II addresses and refutes recent counterarguments from a few judges in other cases, particularly in Hively. I. SEXUAL ORIENTATION DISCRIMINATION IS A FORM OF
SEX DISCRIMINATION. For at least three reasons, “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively, 853 F.3d at 341. First, under a basic sex
3

discrimination (or “sex-plus”) theory,2 such discrimination necessarily involves sexbased considerations because the discrimination endured by a man based on his attraction to men is not suffered by any woman with an identical attraction to men. Second, just as discrimination against an employee who is romantically involved with someone of a different race has universally been recognized as race discrimination barred by Title VII, discrimination against an employee who is attracted to someone of the same sex must be recognized as sex discrimination equally barred by that law. Finally, under a sex stereotyping theory, sexual orientation discrimination is sex discrimination because it rests on the sex-specific stereotype that men are or should be attracted only to women, and that women are or should be attracted only to men.
A. When Employers Discriminate Based On Sexual Orientation, They Necessarily Consider An Employee’s Sex.
First, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.” Christiansen, 852 F.3d at 202 (Katzmann, C.J.,
2 “Sex-plus” is the term for discrimination occurring not categorically against all members of one sex, but only those members sharing a certain trait (for instance, having young children), when members of the other sex who share that trait suffer no discrimination. Title VII unquestionably bars sex-plus discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); cf. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 n.9 (2d Cir. 2004) (“any meaningful regime of antidiscrimination law must encompass” sex-plus claims).
4

concurring). That is because “sexual orientation is inseparable from and inescapably
linked to sex.” Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5 (E.E.O.C. 2015).3 Conceptually, this is a straightforward formulation. The Court
need only ask whether the employee would have faced discrimination if the
employee had been of a different sex. See City of Los Angeles Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 711 (1978) (articulating the controlling, yet
“simple[,] test of whether the evidence shows treatment of a person in a manner
which but for that person’s sex would be different” to determine whether a sex-based
violation of Title VII occurred) (internal quotation marks omitted); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983).4 If the
employee would have been treated differently had they been of the other sex, then
the discrimination was based on sex.
Thus, where an employer fires a female employee because the employee is
married to (or lives with, dates, or is attracted to) a woman but would not fire a male
3 This is not to say that “sex” and “sexual orientation” are interchangeable concepts or terms, see infra Part II.A; the salient point is, rather, that an individual’s sexual orientation is defined in relation to sex, and that antigay discrimination necessarily takes account of an individual’s sex. 4 While a plaintiff satisfying Manhart’s “but-for” test necessarily satisfies Title VII’s causation requirement, Title VII plaintiffs may also prevail based on “the less stringent ‘motivating-factor’ test.” Zarda, 855 F.3d at 81-82 (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)); see also 42 U.S.C. § 2000e–2(m).
5

employee for identical conduct with (or attraction to) a woman, the employer has engaged in “paradigmatic sex discrimination.” Hively, 853 F.3d at 345. See also Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015) (“If a business fires Ricky because of his sexual activities with Fred, while this action would not have been taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.”) (alterations, citation omitted).
A growing number of courts have recognized the logic of this position. See, e.g., Hively, 853 F.3d at 350-51; id. at 358 (Flaum, J., concurring); Hall, 2014 WL 4719007, at *3; Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1161 (C.D. Cal. 2015); Baldwin, 2015 WL 4397641, at *5.
B. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII.
Second, sexual orientation discrimination is sex discrimination because it treats otherwise similarly-situated people differently because of their sex, viewed in relation to the sex of the individuals with whom they associate (or to whom they are attracted). Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 347-48; id. at 359 (Flaum, J., concurring).
6

This Court and many others have already adopted this reasoning in the context of race discrimination. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), a case post-dating Simonton and Dawson, this Court held for the first time that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139; see also id. (citing district and appellate decisions endorsing this reasoning). Holcomb’s holding that discrimination based on an employee’s interracial associations constitutes race discrimination cannot “be legitimately reconciled” with an argument that discrimination based on a worker’s same-sex intimate relationships is not sex discrimination. Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 268 (D. Conn. 2016).
It bears emphasizing that, notwithstanding the sometimes considerable difference, historically and socially, among the kinds of discrimination prohibited under Title VII, the Supreme Court has made clear that courts should treat discrimination under the enumerated traits the same, because the statue “on its face treats each of the enumerated categories exactly the same.”5 Price Waterhouse, 490 U.S. at 243 n.9; see also Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1
5 The statute delineates limited, narrow exceptions to this rule that are not relevant here. See 42 U.S.C. § 2000e–2(e); Christiansen, 852 F.3d at 204 n.1 (Katzmann, C.J., concurring).
7

(1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986); Manhart, 435 U.S. at 709; Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 n.2 (2d Cir. 2007); cf. Oncale v. Sundower Offshore Servs., 523 U.S. 75, 78 (1998) (rejecting attempt to exclude all same-sex harassment from Title VII’s scope, noting that “we have rejected any conclusive presumption that an employer will not discriminate against members of his own race”).
Accordingly, this Court should apply Holcomb’s straightforward and widely accepted reasoning to claims under Title VII’s sex-discrimination provision, and hold that Title VII protects employees from employment discrimination based on their association with persons of a particular sex, just as it protects against discrimination based on interracial association.
C. Tite VII Protects All Employees, Including LGB Employees, From Discrimination Based On Sex Stereotypes.
Finally, sexual orientation discrimination is sex discrimination “because such discrimination is inherently rooted in gender stereotypes,” Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring), and because discrimination based on such stereotypes indisputably violates Title VII. See Price Waterhouse, 490 U.S. at 251 (“As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match[] the
8

stereotype associated with their group.”); Christiansen, 852 F.3d at 200; Sassaman v. Gamache, 566 F.3d 307, 312-13 (2d Cir. 2009); Back, 365 F.3d at 130.6
An individual’s same-sex attraction “represents the ultimate case of failure to conform to [a sex] stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).” Hively, 853 F.3d at 346; see also Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring); Evans, 850 F.3d at 1264 (Rosenbaum, J., dissenting). It is thus untenable to suggest that Title VII does not cover discrimination based on this attraction.
D. The Statutory Text And The Changed Legal Landscape Support Title VII Coverage of Sexual Orientation.
Hively and the Christiansen concurrence not only endorsed each of the three arguments discussed above for Title VII coverage of sexual orientation, but they also noted the flaw in arguments that emphasize what words are not in the statute, rather than “the scope of the language that already is in the statute.” Hively, 853 F.3d at 344-49; see also Christiansen, 852 F.3d at 207 (Katzmann, C.J., concurring) (criticizing reliance on subsequently proposed, unenacted bills to interpret Title VII). Focusing on non-statutory considerations contravenes Oncale, which emphasized
6 While Back was brought under 42 U.S.C. § 1983, this Court made clear that the analysis was the same under Title VII. See also Sassaman, 566 F.3d at 313 (relying on Back in Title VII case).
9

that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. at 79.
The above three arguments for coverage also “reflect the evolving legal landscape since [Simonton and Dawson],” Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring), including the changed “backdrop of the Supreme Court’s decisions . . . in the area of broader discrimination on the basis of sexual orientation.” Hively, 853 F.3d at 349; see also Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 348 (E.D.N.Y. 2015).
For example, while the right of same-sex couples to marry is now recognized as fundamental, see Obergefell, 135 S. Ct. at 2604-05, not a single state recognized same-sex marriage at the time Simonton was decided. Indeed, Simonton predates even Lawrence, 539 U.S. 558, before which intimate relations between same-sex couples could be criminalized. It is thus not surprising that courts at that time did not consider the arguments advanced here. Cf. Foray v. Bell Atlantic, 56 F. Supp. 2d 327, 329-30 (S.D.N.Y. 1999) (noting support for plaintiff’s claim that benefits eligibility based on one’s sex in relation to the sex of one’s partner is actionable sex discrimination under Title VII if same-sex and different-sex couples were similarly situated with respect to marriage, which was not the case in 1999). In the postLawrence, post-Obergefell world, however, such perspectives must be reconsidered. See Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring) (“[I]t makes little
10

sense to carve out same-sex relationships as an association to which [Title VII’s]
protections do not apply, particularly where, in the constitutional context, the
Supreme Court has held that same-sex couples cannot be ‘lock[ed] . . . out of a
central institution of the Nation’s society.’” (quoting Obergefell, 135 S. Ct. at
2602)).
Moreover, Simonton’s and Dawson’s sexual orientation analysis under Title
VII is inconsistent with, and raises constitutional concerns under this Court’s ruling
in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675
(2013), adopting heightened constitutional protection for lesbians and gay men. Id.
at 181-82.7 It would be untenable for this Court, having deemed sexual orientation
classifications “quasi-suspect,” id., to perpetuate a judicial bar on otherwise viable
sex-stereotyping and associational-gender claims precisely because they involve
sexual orientation discrimination, or to again single out sex-discrimination claims
by “avowedly homosexual” plaintiffs as a “problem.” Dawson, 398 F.3d at 218.8
7 Windsor’s test for heightened scrutiny remains the law in this circuit, see Adkins v. City of New York, 143 F. Supp. 3d 134, 139–40 (S.D.N.Y. 2015), even if the Supreme Court was not explicit about the application of heightened scrutiny when affirming this Court’s decision on the merits. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014) (interpreting Supreme Court’s Windsor decision as requiring heightened scrutiny for sexual orientation). 8 This Court’s straightforward application of Price Waterhouse in Sassaman, 566 F.3d 307, which involved a stereotype about male-female sexual harassment, sharpens the tension between the Court’s general acceptance of sex-stereotyping doctrine and its suspicion of sex-stereotyping claims by gay plaintiffs, Dawson, 398
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II. ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL ORIENTATION DISCRIMINATION ARE WITHOUT MERIT.
While a majority of appellate judges to have addressed the issue at bar within
the last year have found convincing all or some of the above-noted arguments for Title VII coverage of sexual orientation,9 the three dissenting judges in Hively, as
well as the concurrence in Evans, raise opposing arguments that, while
unconvincing, warrant analysis and refutation.
A. The Hively Dissent Poses the Wrong Questions, and Misapplies Doctrines of Statutory Interpretation.
The Hively dissent belabors the irrelevant point that “‘sexual orientation’. . . is not synonymous with ‘sex.’” Hively, 853 F.3d at 363 n.3 (Sykes, J., dissenting) (hereinafter “Hively dissent”) (citing Sexual Orientation, Oxford English Dictionary (2009 ed.)); see also id. at 363 (“The two terms are never used interchangeably . . . .”). The issue before this Court, however, is whether antigay discrimination is discrimination because of a person’s sex. To prevail on that issue, it is wholly unnecessary for Plaintiffs-Appellants to demonstrate that “sexual orientation” and “sex” are synonyms or that they are interchangeable concepts or terms. The terms
F.3d at 218. 9 This includes not only Chief Judge Katzmann (joined by District Judge Brodie), see Christiansen, 852 F.3d at 204-07 (Katzmann, C.J., concurring), and eight of eleven judges in Hively, see 853 F.3d at 345-59, but also Judge Rosenbaum of the Eleventh Circuit, who called on her circuit to reconsider the issue en banc, see Evans, 850 F.3d at 1261-73 (Rosenbaum, J., dissenting).
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“race” and “interracial marriage” are not synonyms and not used interchangeably; nevertheless, this Court and many others have recognized that “[w]here a plaintiff
claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.” Holcomb, 521 F.3d at 139 (quoting Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)).10
The Hively dissent fares no better when it contends that subsequent legislative enactments expressly prohibiting discrimination based on both “sexual orientation” and “sex” somehow confirm that these types of discrimination do not overlap under
Title VII. For one, Title VII and the subsequent enactments to which the Hively dissent
refers were not enacted in the same legal era. The first statutory provision cited in
this section of the Hively dissent, for example, is 42 U.S.C. § 13925(b)(13)(A), enacted as part of the 2013 Violence Against Women Reauthorization Act. In contrast, Title VII passed in 1964, when the practice of expressly and separately
10 The Hively dissent also insists on adherence to Title VII’s “original public meaning”—employing a phrase popular among some professors but wholly absent from the Supreme Court’s voluminous Title VII jurisprudence. See Hively dissent, 853 F.3d at 360, 362. Ascertaining Title VII’s “original public meaning” is not, moreover, the simple exercise that the Hively dissent assumes. See generally Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012). And even under a narrow definition of sex discrimination, sexual orientation discrimination fits the definition. See Hively, 853 F.3d at 345-46.
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enumerating “sexual orientation” in civil rights legislation had not yet emerged. The
first ordinance and state statute expressly banning such discrimination in private
employment were passed respectively in East Lansing, Michigan in 1972, and in Wisconsin in 1982. Gary Mucciaroni, Same Sex, Different Politics: Success and Failure in the Struggles over Gay Rights 213 n.12 (2008). But even though a
particular manifestation of discrimination covered by Title VII has become so pronounced or well-understood that it now has a separate designation (“sexual harassment,” “Islamaphobia,” “sexual orientation discrimination”), that does not change the coverage analysis or require specific, separate statutory enumeration. See Hively, 853 F.3d at 350 n.5.11 It is anachronistic to rely on recent legislation specifically enumerating “sexual orientation” to justify a narrow interpretation of a
broadly worded statutory provision from fifty years ago that prohibits discrimination “because of . . . sex.” See Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 n.12 (D. Conn. 2016) (interpreting sex discrimination provision in Connecticut state law to cover discrimination against transgender individuals even before specific
11 “Sexual harassment” was not in the legal or social lexicon in 1964, and four of the first five courts to consider whether sexual harassment was discrimination “because of . . . sex” answered in the negative. See Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (noting that, of the first five cases deciding whether Title VII covers sexual harassment, Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), stood alone as the only court holding in the affirmative). Nevertheless, Title VII’s coverage of sexual harassment has been hornbook law for over three decades.
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amendment “that added ‘gender identity or expression’ to the list of protected classes” because the added “language does not require the conclusion that gender identity was not already protected by the plain language of the statute, because legislatures may add such language to clarify or to settle a dispute about the statute’s scope rather than solely to expand it.”).
Arguing that discrimination “because of . . . sex” in Title VII excludes sexual orientation discrimination could possibly make sense if, for example, Title II, passed the same year, had proscribed discrimination based on both “sex” and “sexual orientation.” There are occasions when significance may be attached to the fact that the same statute uses two terms in a way suggesting they are mutually exclusive, see Smiley v. Citibank N.A., 517 U.S. 735, 746 (1996), but of course, that is not the case here. As Smiley explained, a “word often takes on a more narrow connotation when it is expressly opposed to another word: ‘car,’ for example, has a broader meaning by itself than it does in a passage speaking of ‘cars and taxis.’” 517 U.S. at 746. But “sex” in Title VII “is not used in contradistinction to” the term “sexual orientation,” and therefore, “there is no reason why” discrimination because of an individual’s sex “cannot include” sexual orientation discrimination. Id. at 746-47.
The Hively dissent’s logic would also disrupt other areas of Title VII law. For example, the dissent cites 20 U.S.C. § 1092(f)(1)(F)(ii) as evidence that Congress distinguishes between discrimination based on “sex” and discrimination based on
15

“sexual orientation,” noting that this statute enumerates the traits separately. But that statute also enumerates “ethnicity” separately from “race” and “national origin.” Under the Hively dissent’s logic, therefore, Title VII—which does not enumerate “ethnicity”—should not be interpreted to cover discrimination based on ethnicity. This is untenable under Second Circuit precedent. See Vill. of Freeport v. Barrella, 814 F.3d 594, 606-607 (2d Cir. 2016) (holding “that discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”).
B. The Correct Comparator to a Man Attracted to Men is a Woman Attracted to Men.
When using a comparator analysis to determine whether discrimination against a gay person is based on sex, the proper comparator to a gay man, i.e. a man attracted to men, is a woman attracted to men, as Chief Judge Katzmann noted in his Christiansen concurrence. See 852 F.3d at 203. The counterargument espoused by the Hively dissent, 853 F.3d at 366, that the correct comparator to a gay man fired because of his attraction to men is a lesbian, cannot be squared with logic or wellsettled law, including Loving v. Virginia, 388 U.S. 1 (1967), and Manhart, 435 U.S. at 711.
1. Analogies to Interracial Association Cases Are Apt. Contrary to the Hively dissent’s contention, analogies to cases on interracial
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association, including Loving, are apt.12 As the Christiansen concurrence recognized, the Supreme Court held that treating all members of interracial relationships the same, but less favorably than members of intraracial relationships, was a race–based classification. 852 F.3d at 203 (Katzmann, C.J., concurring) (alteration in original). “The same logic suggests that it is sex discrimination to treat all individuals in same–sex relationships the same, but less favorably than individuals in opposite–sex relationships.” Id.
Loving invalidated Virginia’s anti-miscegenation law not only because it endorsed “White Supremacy,” 388 U.S. at 11, but also based on the racial classification on the law’s face, see id. at 8-9. And, Loving was preceded by McLaughlin v. Florida, 379 U.S. 184 (1964), which invalidated a Florida law criminalizing interracial cohabitation—without any discussion of “White Supremacy.” See id. at 188, 191-92, 195 (holding that law impermissibly classified based on race even though law applied equally to “all whites and [blacks] who engage in the forbidden conduct”). As one scholar has explained, “McLaughlin did not rely on any claims whatsoever about the motive for the law or about the class
12 As noted above, see Part I.B, supra, support for Title VII coverage of sexual orientation discrimination by analogy to discrimination against those in interracial relationships has enjoyed wide and enthusiastic judicial support. See, e.g., Hively, 853 F.3d at 359 (Flaum, J., concurring); Boutillier, 221 F. Supp. 3d at 268; Scott Med. Health Ctr., P.C., 217 F. Supp. 3d at 840 n.5; Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193-94 (M.D. Ala. 2015).
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that was harmed by the law,” yet “noted that there was a racial classification and applied heightened scrutiny”; the “sex discrimination argument for protecting gays from discrimination requires nothing more.” Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519, 522-23 & n.19 (2001) (footnote omitted).
In any event, the Hively dissent ignores decades of constitutional and statutory case law by suggesting that a law or policy that draws distinctions based on race or sex should not be analyzed as a racial or sex-based classification unless it aims to promote racial supremacy or the subjugation of women. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-27 (1995) (holding that “all racial classifications” by governmental actors trigger strict judicial scrutiny, regardless of motive).
Finally, while the above-noted reasoning more than suffices to expose the error in the Hively dissent’s Loving analysis, it is also worth pointing out that the dissent’s error runs even deeper: By claiming that “[n]o one argues that sexualorientation discrimination aims to promote or perpetuate the supremacy of one sex,” 853 F.3d at 368, the Hively dissent overlooks decades of extensive scholarship and advocacy—and numerous judicial opinions—exploring the relationship between antigay oppression and the gender norms that have traditionally privileged men and masculinity. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians
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and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-257 (1994) (discussing “[t]he connection between sexism and the homosexuality taboo”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2010); Videckis, 150 F. Supp. 3d at 1160.
2. Manhart makes clear that the proper comparator in this case is a woman attracted to men.
As Chief Judge Katzmann explains, “Manhart tells us that sex discrimination is treating someone ‘in a manner which but for that person’s sex would be different,’” Christiansen, 852 F.3d at 203 (Katzmann, C.J., concurring) (quoting Manhart, 435 U.S. at 711); this suggests that when we “evaluat[e] a comparator for a gay, lesbian, or bisexual plaintiff” to determine whether sex discrimination has occurred, “we must hold every fact except the sex of the plaintiff constant— changing the sex of both the plaintiff and his or her partner would no longer be a ‘but–for–the–sex–of–the–plaintiff’ test.” Id. Thus, when using a comparator method to determine whether an employer has discriminated against a gay male plaintiff because of sex, the relevant inquiry is whether the employer treats a man attracted to men differently than it treats a woman attracted to men.
Under the Hively dissent’s reasoning, however, comparing a man attracted to a man with a woman attracted to a man involves changing “two variables—the plaintiff’s sex and sexual orientation,” and the comparison therefore fails, in the dissent’s view, to “hold everything constant except the plaintiff’s sex.” 853 F.3d at
19

366 (citing majority opinion, 853 F.3d at 345-46). The logic of this counterargument, however, unravels on inspection: The dissent’s framing is premised on the notion that a man attracted to men and a woman attracted to men have different sexual orientations, see id.; the dissent thus acknowledges (implicitly, and perhaps unwittingly) that a person’s sexual orientation is necessarily defined, in part, by his or her own sex. That acknowledgment effectively concedes Amicus’s and the Chief Judge’s point.
Put more simply, the Hively dissent cheats by including the “sum” in the equation. Consider this scenario: if you take vodka and orange juice, and then swap grapefruit juice for the orange juice, have two things changed, or just one thing? Under Chief Judge Katzmann’s logic, the answer is clearly “one thing,” while the Hively dissent would argue that what was a screwdriver is now a greyhound, so two things have changed. Thus, the Hively dissent’s cute parlor trick, if adopted, could be used to defeat any application of the comparator method. For example, one could argue that a company’s policy of firing women with small children cannot properly be compared to its policy of hiring men with small children, because such a comparison changes too many variables; rather than simply comparing women to men, it compares women who are mothers to men who are fathers. This absurd application of the comparator method, however, should and would fail. See Phillips, 400 U.S. at 544.
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Perhaps recognizing that its argument falls flat, the Hively dissent denigrates the very exercise of comparator framing. See 853 F.3d at 366 (“the comparative
method of proof is an evidentiary test; it is not an interpretive tool. It tells us nothing about the meaning or scope of Title VII.” (emphasis omitted)). The dissent cites no support for its far-fetched theory that courts can learn “nothing”
about Title VII’s scope by comparing the treatment of men and women, and case
law does not support it. There was no evidentiary dispute before the Court in Phillips, for example; rather, the Justices compared the employer’s policy on women with small children to the employer’s very different policy on men with small
children, and held that the Fifth Circuit “erred in reading [Title VII] as permitting one hiring policy for women and another for men . . . .” 400 U.S. at 544. Under this Court’s precedent, moreover, if an employer punishes a white man who marries a
black woman but does not punish a similarly situated black man for marrying a black woman, the employer violates Title VII as a matter of law; this isn’t a claim about facts or evidence, but about the “meaning and scope” of Title VII’s protections, as determined in Holcomb, 521 F.3d at 139-40.13
13 To the extent the Hively dissent merely believes that disputes over comparators are often an unnecessary distraction in Title VII cases, Amicus could not agree more. A plaintiff may prove discrimination even without the existence of comparators or “similarly situated” employees, Back, 365 F.3d at 121, “because the ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.” Id. (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
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C. That Discrimination Based on Sex Stereotypes is Prohibited by Title VII is Firmly Settled Law.
Perhaps the Hively dissent’s most radical argument is its challenge to Price Waterhouse’s universally-recognized and still current holding that Title VII prohibits discrimination based on sex stereotypes. It is simply wrong to suggest there was any daylight between the four-justice plurality and the two concurring justices regarding whether Ann Hopkins had proven discrimination based on impermissible stereotypes. See Price Waterhouse, 490 U.S. at 259 (White, J., concurring) (“her burden was to show that the unlawful motive was a substantial factor in the adverse employment action. . . . and I agree that the finding was supported by the record.”); id. at 272 (O’Connor, J., concurring) (“Hopkins proved that Price Waterhouse ‘permitt[ed] stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner,’” and thus “proved discriminatory input [in] the decisional process” (citation omitted)).
It is thus not surprising that this Court, and every other appellate court of which Amicus is aware, has agreed that Title VII condemns sex stereotyping discrimination. See Christiansen, 852 F.3d at 200 (observing that six Justices in Price Waterhouse endorsed view that discrimination based on sex stereotypes violates Title VII); Back, 365 F.3d at 119; Sassaman, 566 F.3d at 312-14; see also EEOC v. Boh Bros., (5th Cir. 2014) (en banc); Glenn, 663 F.3d 1312.
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D. Antigay Discrimination is Actionable Under Title VII Under a Simple Sex-Plus Theory.
Perhaps the weakest anti-coverage argument advanced is that sexual orientation discrimination does not involve wholesale discrimination against either gender, but only discrimination against a particular subset of a gender sharing the same attribute. This hasn’t been a tenable argument since 1971, when the Supreme Court unanimously held that Martin Marietta’s impressive track record of giving women jobs didn’t save a policy whereby some women – those with young children – were fired, while men with young children kept their jobs. Thus the response to the Hively dissent’s odd assertion of how difficult it would be to “explain . . . to a jury” that sex discrimination had occurred if Kim Hively had been replaced with heterosexual women, see Hively dissent, 853 F.3d at 373, would be to posit a scenario where six women were fired for refusing their supervisor’s sexual demands. Even if all six positions were later backfilled by other women, no jury would struggle to grasp that the fired women had suffered discrimination because of sex. See Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of . . . sex merely because [it] favorably treats other members of the employees’ group.”); Hively, 853 F.3d at 346 n.3 (“A failure to discriminate against all women does not mean that an employer has not discriminated against one woman on the basis of sex.”).
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E. Statutory Stare Decisis Is Of Relatively Little Weight in the Context of Courts of Appeals Decisions and of No Relevance When Such Decisions Conflict With Supreme Court Precedent.
Statutory stare decisis carries little weight when one relies only on the authority of lower courts, in the face of conflicting, better reasoned lower court decisions and legal scholarship. As Hively points out, the Supreme Court, when pronouncing definitively the law of the land, has not been shy about rejecting the view of the law held by the overwhelming majority of lower courts. See Hively, 853 F.3d at 350 n.6. In a recent case that was a high water mark for endorsing statutory stare decisis, the Supreme Court made clear that it considered the principle to be applicable to its decisions. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015) (defining “statutory stare decisis” as when “this Court interprets and Congress decides whether to amend” and that the principle “assumes Congress will correct whatever mistakes we commit.”) (emphasis added).
Among the many concerns regarding how much weight to give Congressional inaction is the constitutional problem associated with giving either house a “legislative veto” over an attempt to cure a judicial misinterpretation. Frank Easterbrook, Stability & Reliability in Judicial Decisions, 73 Cornell L. Rev. 422, 426-28 (1988). This concern is far from academic. In November 2013, the Senate passed, 64-32, legislation prohibiting sexual orientation discrimination (the
24

Employment Non-Discrimination Act, or “ENDA”) that the President was willing to sign. However, the House of Representatives refused to act on the bill. See Matt Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act ‘Unecessary,’ Mediaite (Nov. 14, 2013), at http://www.mediaite.com/tv/boehner-calls-lgbtemployment-non-discrimination-act-unnecessary.
Despite its acknowledgment that the Supreme Court has not “weigh[ed] in” on this issue, see Hively dissent, 853 F.3d at 361, the Hively dissent also makes the unsupported claim that four Supreme Court cases are “irreconcilable” with Title VII coverage of sexual orientation. Id. at 372 (citing Romer, 517 U.S. 620; Lawrence, 539 U.S. 558; Windsor, 133 S. Ct. 2675; and Obergefell, 135 S. Ct. 2584)). However, none of these decisions addressed—much less rejected—the argument that sexual orientation discrimination constitutes sex discrimination. The Hively dissent does not point to any language from any of the cases suggesting otherwise; instead, its argument appears to rest on the manifestly mistaken premise that the Supreme Court’s endorsement of one constitutional argument to invalidate a legal provision necessarily implies the rejection of alternative arguments that were or could have been advanced in support of the Court’s judgment. See Hively dissent, 853 F.3d at 372. This is not the law, as the very cases cited by the dissent make clear. For example, in holding that Texas’s Homosexual Conduct Law violated the Due Process Clause, Lawrence did not expressly invoke the language of
25

“fundamental rights,” nor did it adopt any of the equal protection rationales advanced by the parties and amici. See 538 U.S. at 574-75. None of this, however, stood in the way of the Court’s fundamental-rights and equal-protection rulings in later cases recognizing constitutional protections for same-sex relationships. See Obergefell, 135 S. Ct. at 2604-05; Windsor, 133 S. Ct. at 2695-96. Similarly, while Romer and Lawrence declined to address whether discrimination based on sexual orientation triggers heightened scrutiny under the Equal Protection Clause, they did not preclude lower courts from addressing that issue themselves or from resolving it in favor of heightened scrutiny, as this Court made clear in Windsor. See, e.g., Windsor, 699 F.3d at 179-185.
F. Courts Must Condemn All Discrimination “Because of . . . Sex,” Irrespective of Whether the Discrimination is Motivated by a Person’s Status, Behavior, Or Some Combination Thereof.
In his Evans concurrence, Judge William Pryor posits that Title VII cannot provide “relief based on status,” because that “would undermine the relationship between the doctrine of gender nonconformity and the enumerated classes protected by Title VII.” Evans, 850 F.3d at 1258 (Pryor, J., concurring). But case law makes clear that, if the employer is taking gender into account, it violates Title VII even if the discrimination also arises from a “status” that is covered in some antidiscrimination laws, but is not enumerated in Title VII. Plainly, the termination of married women in Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971), and
26

of women with young children in Phillips and in Back, could also be deemed discrimination based on “marital status” or “parental status/familial status.” Under Title VII, the relevance of “status” is that if men and women have the same status (e.g., “married,” or “with young children,” or “in a relationship with a man”), an employer cannot treat the men having that status differently than the women having that status.
And contrary to the Evans’s concurrence limited view of what constitutes sex stereotyping, many cases throughout Title VII’s history reflect the broad understanding of sex stereotypes that the statute combats, including stereotypes about life choices about families and relationships. See, e.g., Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir. 1988) (refusing to credit “stereotype” that men are more often sole wage earners); Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir. 1974) (discrimination based on “stereotypical culturally-based concepts of the abilities of people to perform certain tasks because of their sex” violates Title VII); cf. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding statute rooted in stereotype that families depend on male breadwinners unconstitutional).
Moreover, Judge Pryor’s attempt at distinguishing between status and conduct in his Evans concurrence has been resoundingly repudiated by the Supreme Court. See Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the
27

Law v. Martinez, 561 U.S. 661, 689 (2010) (“Our decisions have declined to distinguish between status and conduct in this context.”).
In short, the Evans concurrence’s creation of a status/conduct distinction is another example of a judge-crafted exception to the full coverage of Title VII’s proscription against sex discrimination, a trend that has been decried by the Supreme Court in Oncale and frequently thereafter. See Lewis v. City of Chicago, 560 U.S. 205, 215 (2010) (It is not for the courts “to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.”); id. at 217 (court’s “charge is to give effect to the law Congress enacted” even if “effect was unintended”); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011); EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015).
CONCLUSION Therefore, Amicus Lambda Legal respectfully urges the Court to hold that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII. Dated this 26th day of June, 2017.
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Respectfully submitted,

/s/ Gregory R. Nevins GREGORY R. NEVINS LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 730 Peachtree Street NE, Suite 640 Atlanta, Georgia 30308 (404) 897-1880
MICHAEL D.B. KAVEY ATTORNEY AT LAW 144 North 7th Street #235 Brooklyn, New York 11249 (917) 623-8884

/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN SHARON M. MCGOWAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005 (212) 809-8585

Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

29

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that: 1. This petition complies with the type-volume limitation, as provided in Fed. R. App. P. 29(b)(4), because, exclusive of the exempted portions of the brief, the brief contains 6,845 words. 2. This brief complies with the type-face requirements, as provided in Fed. R. App. P. 32(a)(5), and the type-style requirements, as provided in Fed. R. App. P. 32(a)(6), because the brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font. 3. As permitted by Fed. R. App. P. 32(g)(1), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. Dated this 26th day of June, 2017.
/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005
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CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing brief with the Clerk of the United States Court of Appeals for the Second Circuit via the CM/ECF system this 26th day of June, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005
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 15-3775-cv

United States Court of Appeals
for the
Second Circuit

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., d/b/a SKYDIVE LONG ISLAND; and RAY MAYNARD,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

EN BANC BRIEF OF 50 EMPLOYERS AND ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS

THOMAS W. BURT Microsoft Corporation 1 Microsoft Way Redmond, WA 98052 (425) 703-6323 Counsel for Microsoft Corporation
SIGISMUND L. SAPINSKI JR. Sun Life Financial (U.S.) Services
Company, Inc. 175 Addison Road Windsor, CT 06095 (860) 737-6597 Counsel for Sun Life Financial (U.S.)
Services Company, Inc.
June 26, 2017

TODD ANTEN JUSTIN T. REINHEIMER CORY D. STRUBLE QUINN EMANUEL URQUHART &
SULLIVAN, LLP 51 Madison Ave., 22nd Floor New York, NY 10010 (212) 849-7000 Counsel for Amici Curiae 48
Employers and Organizations (as listed on inside cover)

Amici Curiae represented by Quinn Emanuel Urquhart & Sullivan, LLP:
AdRoll, Inc.; Ben & Jerry’s; Betterment; 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.

CORPORATE DISCLOSURE STATEMENT AdRoll, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock. Unilever is the parent corporation of Ben & Jerry’s Homemade Inc. No publicly held corporation owns 10% or more of its stock. Betterment Holdings, Inc. is the parent corporation of Betterment. No publicly held corporation owns 10% or more of its stock. Boston Community Capital has no parent corporation, and no publicly held corporation owns 10% or more of its stock. National Amusements, Inc., a privately held company, owns a majority of the Class A voting stock of CBS Corporation. To CBS Corporation’s knowledge without inquiry, according to a Schedule 13D/A filed with the Securities and Exchange Commission on March 15, 2011, GAMCO Investors, Inc. and certain affiliates (any of which may be publicly traded) hold shares representing, as of February 28, 2017, approximately 11.7% of the Class A voting stock of CBS Corporation. CBS Corporation is not aware of any other publicly traded corporation that owns 10% or more of its stock. Citrix Systems, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
i

City Winery LLC is the parent of City Winery. No publicly held corporation owns 10% or more of its stock.
Daniel J. Edelman Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Davis Steadman Ford & Mace, LLC has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
DoorDash, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Dropbox, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Eastern Bank Corporation is the parent corporation of Eastern Bank. No publicly held corporation owns 10% or more of its stock.
FiftyThree, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Freedom for All Americans Education Fund is a 501(c)(3) charitable organization. It has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Alphabet Inc. has more than 10% ownership of Google Inc. No publicly held company owns 10% or more of Alphabet Inc.’s stock.
ii

Greater Burlington Industrial Corporation is a 501(c)(6) economic development corporation. It has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Harvard Pilgrim Health Care, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
IAC/InterActiveCorp is the parent corporation of numerous Internet businesses such as Match.com, OK Cupid, Tinder, and Vimeo. It has no parent company, and no publicly held corporation owns 10% or more of its stock.
IHS Markit Ltd. has no parent corporation. Artisan Partners (Artisan Partners Limited Partnership, Artisan Investments GP LLC, Artisan Partners Holdings LP, and Artisan Partners Asset Management Inc.) has beneficial ownership over approximately 10% of IHS Markit Ltd. common shares.
Indiegogo, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
INUS Group LLC (dba Hot Diggity! Seattle) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Johnston, Kinney & Zulaica LLP has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Kargo Global, Inc. (d/b/a Kargo) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
iii

KEO Marketing Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Kickstarter, PBC has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Levi Strauss & Co. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Linden Research, Inc. (d/b/a Linden Lab) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Lyft, Inc. has no parent corporation. Through subsidiaries, Rakuten, Inc. and General Motors Company each own more than ten percent of Lyft’s outstanding stock.
Mapbox, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Microsoft Corporation has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
National Gay & Lesbian Chamber of Commerce has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
OBOX Solutions has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
iv

On 3 Public Relations has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
People’s Computer Company (d/b/a Physician’s Computer Company) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Pinterest, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Puma Springs Vineyard, LLC has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Quora Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Runtime Collective Limited (d/b/a Brandwatch) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
S&P Global Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
salesforce.com, inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Shutterstock, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
v

Spotify USA Inc. is a wholly-owned subsidiary of Spotify AB, a company organized under the laws of Sweden. Spotify AB is a wholly-owned subsidiary of Spotify Technology S.A., a company organized under the laws of the Grand Duchy of Luxembourg. Spotify Technology S.A. does not have a parent corporation and no publicly held corporation owns 10% or more of its stock.
Sun Life of Canada (U.S.) Holdings, Inc. is the parent corporation of Sun Life Financial (U.S.) Services Company, Inc. Sun Life of Canada (U.S.) Holdings, Inc. and Sun Life Financial (U.S.) Services Company, Inc. are wholly indirectly owned by Sun Life Financial Inc.
Thumbtack, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
TodayTix, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Trust Company of Vermont has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Vermont Gynecology, PC has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Viacom, Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
vi

Wealthfront Inc. has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
ZenPayroll, Inc. (d/b/a Gusto) has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
vii

TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF AUTHORITIES ....................................................................................ix STATEMENT OF INTEREST..................................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................4 I. THE U.S. ECONOMY BENEFITS FROM A DIVERSE
WORKFORCE ................................................................................................4 II. EXCLUDING SEXUAL ORIENTATION FROM TITLE VII’S
PROTECTIONS UNDERMINES BUSINESS INTERESTS.........................7 A. Discrimination Based On Sexual Orientation Is Prevalent In
Employment Across The Country.........................................................7 B. Excluding Sexual Orientation From Title VII’s Scope Leaves
Employees Vulnerable To Discrimination And Undermines Inclusive Workplaces ..........................................................................10 III. THE PATCHWORK OF EXISTING ANTI-DISCRIMINATION LAWS CREATES A FRACTURED WORKFORCE, HARMING BUSINESS INTERESTS ..............................................................................13 CONCLUSION ........................................................................................................17 CERTIFICATE OF COMPLIANCE.......................................................................19 CERTIFICATE OF SERVICE ................................................................................20
viii

TABLE OF AUTHORITIES

Cases

Page

Capek v. BNY Mellon, N.A., 2016 WL 2993211, (S.D.N.Y. May 23, 2016) ..............................................................................14

Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) .........................................................................14

Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)...........................................................11

Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015).............................................................7

Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013)............................7

Statutes

Cal. Gov’t Code § 12940 .........................................................................................13

Colo. Rev. Stat. § 24-34-402 ...................................................................................13

Conn. Gen. Stat. § 46a-81c ......................................................................................13

Del. Code Ann. tit. 19, § 711 ...................................................................................13

Haw. Rev. Stat. § 378-2 ...........................................................................................13

775 Ill. Comp. Stat. Ann. 5/1-102............................................................................13

Iowa Code § 216.6 ...................................................................................................13

Mass. Gen. Laws ch. 151B, § 4 ...............................................................................14

Md. Code Ann., State Gov’t § 20-606 .....................................................................14

Me. Rev. Stat Ann. tit. 5, § 4571 .............................................................................13

Minn. Stat. § 363A.08 ..............................................................................................14

N.H. Rev. Stat. Ann. § 354-A:7 ...............................................................................14

ix

N.J. Stat. Ann. § 10:5 ...............................................................................................14 N.M. Stat. Ann. § 28-1-7 .........................................................................................14 N.Y. Exec. Law § 296..............................................................................................14 2002 N.Y. Laws ch. 2, § 1 .........................................................................................8 Nev. Rev. Stat. § 613.330 ........................................................................................14 Or. Rev. Stat. § 659A.030........................................................................................14 R.I. Gen. Laws § 28-5-7...........................................................................................14 Utah Code Ann. § 34A-5-106 ..................................................................................14 Vt. Stat. Ann. tit. 21, § 495 ......................................................................................14 Wash. Rev. Code § 49.60.........................................................................................14 Wis. Stat. § 111.36 ...................................................................................................14
Other Authorities M.V. Lee Badgett, et al., The Business Impact of LGBT-Supportive
Workplace Policies, THE WILLIAMS INST. (May 2013).................................10 Laura G. Barron & Michelle Hebl, The Force of Law: The Effects of Sexual
Orientation Antidiscrimination Legislation on Interpersonal Discrimination in Employment, 19 PSYCH. PUB. POL’Y & L. 191 (2013).........................................................................................................9, 16 Luke A. Boso, Acting Gay, Acting Straight: Sexual Orientation Stereotyping, 83 TENN. L. REV. 575 (2016) ........................................... 10, 16 Lauren Box, It’s Not Personal, It’s Just Business: The Economic Impact of LGBT Legislation, 48 IND. L. REV. 995 (2015)...............................................6 Crosby Burns, The Costly Business of Discrimination, CTR. FOR AM. PROGRESS (2012) ................................................................................ 6, 10, 13 Credit Suisse ESG Research, LGBT: The Value of Diversity (2016)........................6 EEOC COMPLIANCE MAN. § 15-II (2006) ...............................................................14
x

EEOC, Employment Discrimination Based on Religion, Ethnicity, or Country of Origin ..........................................................................................14
Gary J. Gates, In US, More Adults Identifying as LGBT, GALLUP (Jan. 11, 2017) ................................................................................................................7
Gary J. Gates, LGBT Demographics: Comparisons Among PopulationBased Surveys, THE WILLIAMS INST. (Oct. 2014) ...........................................7
Gary J. Gates, Marriage and Family: LGBT Individuals and Same-Sex Couples, 25 FUTURE OF CHILDREN, no. 2 (Fall 2015) ...................................15
Gary J. Gates & Frank Newport, An Estimated 780,000 Americans in SameSex Marriages, GALLUP (Apr. 24, 2015) .......................................................15
Gary J. Gates & Taylor N. T. Brown, Marriage and Same-sex Couples after Obergefell, THE WILLIAMS INST. (Nov. 2015) ..............................................15
Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, BLOOMBERG (July 20, 2016) ........................................................5
Mark L. Hatzenbuehler, et al., Stigma as a Fundamental Cause of Population Health Inequalities, 103 AM. J. PUB. HEALTH 813 (2013) .........12
Mark L. Hatzenbuehler, et al., Structural Stigma and All-Cause Mortality in Sexual Minority Populations, 103 SOC. SCI. & MED. 33 (2014) ...................12
Sylvia Ann Hewlett, et al., How Diversity Can Drive Innovation, HARV. BUS. REV. (Dec. 2013).....................................................................................5
Sylvia Ann Hewlett, et al., Innovation, Diversity, and Market Growth, CTR. FOR TALENT INNOVATION (2013).....................................................................5
HUMAN RIGHTS CAMPAIGN, The Cost of the Closet and the Rewards of Inclusion: Why the Workplace Environment for LGBT People Matters to Employers (May 2014).......................................................... 11, 12
Ian Johnson & Darren Cooper, LGBT Diversity: Show Me the Business Case, OUT NOW (2015)..................................................................................13
Jeffrey M. Jones & Gary J. Gates, Same-Sex Marriages Up After Supreme Court Ruling, GALLUP (Nov. 5, 2015)...........................................................15
xi

Christy Mallory & Brad Sears, Discrimination, Diversity, and Development: The Legal and Economic Implications of North Carolina’s HB2, THE WILLIAMS INST. (May 2016) ......................................13
Vickie M. Mays & Susan D. Cochran, Mental Health Correlates of Perceived Discrimination Among Lesbian, Gay, and Bisexual Adults in the United States, 91 AM. J. PUB. HEALTH 1869 (2001) ...........................12
Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence, 129 PSYCHOL. BULL. 674 (2003) .................................................12
Jon Miller & Lucy Parker, Open For Business: The Economic and Business Case for Global LGB&T Inclusion (2015)......................................................4
Alison Kenney Paul, et al., Diversity as an Engine of Innovation: Retail and Consumer Goods Companies Find Competitive Advantage in Diversity, 8 DELOITTE REV. 108 (2011) ..........................................................5
PEW RESEARCH CTR., A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times (June 2013)....................................................9
Jennifer C. Pizer, et al., Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 LOY. L.A. L. REV. 715 (2012) ............... 8, 9, 10, 11
Brad Sears & Christy Mallory, Documented Evidence of Employment Discrimination & Its Effects on LGBT People, THE WILLIAMS INST. (July 2011) .......................................................................................... 9, 11, 15
Brad Sears & Christy Mallory, Economic Motives for Adopting LGBTRelated Workplace Policies, THE WILLIAMS INST. (Oct. 2011) ..................3, 6
Sandra F. Sperino, The New Calculus of Punitive Damages for Employment Discrimination Cases, 62 OKLA. L. REV. 701 (2010) ...................................14
András Tilcsik, Pride and Prejudice: Employment Discrimination Against Openly Gay Men in the United States, 117 AM. J. SOC. 586 (2011) ...............9
xii

STATEMENT OF INTEREST1 The 50 companies and organizations that join this brief share an interest in

equality because they know that ending discrimination in the workplace is good for

business, their employees, and the economy as a whole. The below businesses and

organizations are committed to the belief that everyone should have the

opportunity to earn a living, excel in their profession, and provide for their family

free from fear of unequal treatment. Amici listed below support the notion that no

one should be passed over for a job, paid less, terminated, or subject to harassment

or any other form of discrimination based on nothing more than their sexual

orientation. Creating workplaces in which employees are and feel safe from

discrimination frees them to do their best work, with substantial benefits for their

employers.

The entities that join this brief are (in alphabetical order):

1. AdRoll, Inc. 2. Ben & Jerry’s 3. Betterment

4. Boston Community Capital 5. Brandwatch 6. CBS Corporation

1 Pursuant to Fed. R. App. P. 29(a)(4)(E) and Local Circuit Rule 29.1(b), amici state that no party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and no person contributed money that was intended to fund preparing or submitting this brief. Pursuant to Fed. R. App. P. 29(a)(2), amici state that the Court granted amici, as interested parties, leave to file this brief. ECF No. 271 at 2.

1

7. Citrix Systems, Inc.

28. Levi Strauss & Co.

8. City Winery

29. Linden Lab

9. Davis Steadman Ford & Mace, LLC
10. DoorDash, Inc. 11. Dropbox, Inc.
12. Eastern Bank

30. Lyft, Inc. 31. Mapbox, Inc.
32. Microsoft Corporation
33. National Gay & Lesbian Chamber of Commerce

13. Edelman

34. OBOX Solutions

14. FiftyThree, Inc.

35. On 3 Public Relations

15. Freedom for All Americans Education Fund
16. Google Inc.
17. Greater Burlington Industrial Corporation

36. Physician’s Computer Company 37. Pinterest 38. Puma Springs Vineyards 39. Quora Inc.

18. Gusto

40. S&P Global Inc.

19. Harvard Pilgrim Health Care, Inc. 41. Salesforce

20. IAC/InterActiveCorp

42. Shutterstock, Inc.

21. IHS Markit Ltd.

43. Spotify

22. Indiegogo

44. Sun Life Financial U.S.

23. INUS Group LLC

45. Thumbtack

24. Johnston, Kinney & Zulaica LLP 46. TodayTix

25. Kargo

47. Trust Company of Vermont

26. KEO Marketing Inc.

48. Vermont Gynecology

27. Kickstarter, PBC

49. Viacom, Inc.

50. Wealthfront Inc.

2

SUMMARY OF ARGUMENT Interpreting Title VII of the Civil Rights Act of 1964 to exclude sexual orientation from protections against sex discrimination has wide-ranging, negative consequences for businesses, their employees, and the U.S. economy. Businesses’ first-hand experiences—supported by extensive social-science research—confirm the significant costs for employers and employees when sexual orientation discrimination is not forbidden by a uniform law, even where other policies exist against such discrimination. Our nation’s employers and employees would be far better off with a lesbian, gay, bisexual, and transgender (“LGBT”) workforce that need not experience or fear discrimination for simply doing their jobs. There is no truth to the notion that laws forbidding sexual orientation discrimination are unreasonably costly or burdensome for business. To the contrary, recognizing that Title VII prohibits sexual orientation discrimination as a form of sex discrimination would strengthen and expand benefits, such as the ability to recruit and retain the top talent; to generate innovative ideas by drawing on a greater breadth of perspectives, characteristics, and experiences; to attract and better serve a diverse customer base; and to increase productivity among employees that feel valued, comfortable, and respected.2
2 See Brad Sears & Christy Mallory, Economic Motives for Adopting LGBTRelated Workplace Policies, THE WILLIAMS INST. 2 (Oct. 2011), available at
(footnote continued) 3

Accordingly, the 50 above-listed companies and organizations joining this brief respectfully urge this en banc Court to recognize that Title VII prohibits discrimination on the basis of sexual orientation.
ARGUMENT I. THE U.S. ECONOMY BENEFITS FROM A DIVERSE WORKFORCE
Amici are companies and organizations in wide-ranging sectors of the national and local economy and are committed to building workplaces that value diversity, inclusion, and equality. The U.S. economy is strengthened when all employees are protected from discrimination in the workplace. The absence of full legal protections for LGBT workers hinders the ability of amici to compete in all corners of the country and harms the U.S. economy as a whole.
Businesses thrive when LGBT employees are represented. Including diverse viewpoints in the workforce brings unique backgrounds and experiences to the table, fostering creativity and innovation, making such businesses more competitive in the local, national, and global economy.3 Diversity has been found to “unlock[] innovation by creating an environment where ‘outside the box’ ideas
https://tinyurl.com/yd5g6sha (surveying top 50 Fortune 500 companies (2010) and top 50 federal government contractors (2009)).
3 See Jon Miller & Lucy Parker, Open For Business: The Economic and Business Case for Global LGB&T Inclusion 28 (2015), available at https://tinyurl.com/y9mtp3of (“Researchers have found a close correlation between economic development and LGB&T inclusion.”).
4

are heard.”4 LGBT individuals come from all backgrounds, offer insights drawn
from every walk of life, and bring unique perspectives on these experiences.
A diverse and inclusive workforce likewise furthers businesses’ ability to
connect with consumers, particularly given that the buying power of diverse groups has increased substantially over the past 30 years.5 In 2016, the buying power of LGBT people in the United States stood at over $900 billion.6 In
“matching the market,” businesses succeed by including diverse employees who
“are better attuned to the unmet needs of consumers or clients like themselves,”
and “their insight is critical to identifying and addressing new market opportunities.”7
LGBT-inclusive workplaces result in stronger work performance by all
employees. When LGBT employees feel safe to be themselves in the workplace,
“everybody’s productivity is enhanced, including straight and non-transgender
4 Sylvia Ann Hewlett, et al., How Diversity Can Drive Innovation, HARV. BUS. REV. (Dec. 2013), available at https://tinyurl.com/j8nyu8k.
5 Alison Kenney Paul, et al., Diversity as an Engine of Innovation: Retail and Consumer Goods Companies Find Competitive Advantage in Diversity, 8 DELOITTE REV. 108, 111 (2011), available at https://tinyurl.com/ya8nb3rd.
6 Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, BLOOMBERG (July 20, 2016), available at https://tinyurl.com/jzdaptl (“The combined buying power of U.S. lesbian, gay, bisexual and transgender adults rose about 3.7 percent to $917 billion last year.”).
7 Sylvia Ann Hewlett, et al., Innovation, Diversity, and Market Growth, CTR. FOR TALENT INNOVATION 4 (2013), available at https://tinyurl.com/htpyqra.
5

colleagues.”8 In a survey of the top 50 Fortune 500 companies and the top 50
federal government contractors, the overwhelming majority of the top-performing,
most-innovative companies connect policies prohibiting sexual orientation discrimination with a better bottom line.9
Recent studies confirm that companies with LGBT-inclusive workplaces have better financial outcomes.10 This superior performance extends beyond the
walls of the company itself to the larger community in which the company
operates; as multiple studies have found, the level of inclusiveness of LGBT
employees is strongly correlated with a jurisdiction’s “wealth, prospects for economic investment, and ability to recruit talent.”11 Recognizing that our uniform
federal law protects LGBT employees would benefit individual businesses, and the
economy as a whole, by removing an artificial barrier to the recruitment, retention,
and free flow of talent.
8 Crosby Burns, The Costly Business of Discrimination, CTR. FOR AM. PROGRESS 34 (2012), available at https://tinyurl.com/j2r8wtu.
9 See Sears & Mallory, supra n.2, at 1. 10 See, e.g., CREDIT SUISSE ESG RESEARCH, LGBT: The Value of Diversity (2016), available at https://tinyurl.com/ybwhjqe8 (finding that 270 companies that supported and embraced LGBT employees outperformed the market by 3% per annum). 11 Lauren Box, It’s Not Personal, It’s Just Business: The Economic Impact of LGBT Legislation, 48 IND. L. REV. 995, 995-96 (2015) (“While LGBT inclusiveness is not the only factor contributing to a state’s economic vitality, it plays a key role in helping states progress in the economic development race.”).
6

II. EXCLUDING SEXUAL ORIENTATION FROM TITLE VII’S PROTECTIONS UNDERMINES BUSINESS INTERESTS Employment discrimination based on sexual orientation—which still
routinely occurs across the nation—has significant, harmful effects on employers, employees, and the bottom line.
A. Discrimination Based On Sexual Orientation Is Prevalent In Employment Across The Country
As of 2016, approximately 10 million adults in the United States (4.1% of all adults) identify as LGBT.12 By any measure, the LGBT segment of the U.S. workforce represents a significant number of both public- and private-sector employees. Businesses draw on and benefit from the contributions of LGBT workers at all levels and across industries.
Courts across the country—including in the Second Circuit—have recognized the long and pervasive history of discrimination based on sexual orientation, including in the workplace. See, e.g., Windsor v. United States, 699 F.3d 169, 182 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (“It is easy to conclude that homosexuals have suffered a history of discrimination.”); Roberts v. United
12 Gary J. Gates, In US, More Adults Identifying as LGBT, GALLUP (Jan. 11, 2017), available at https://tinyurl.com/yb9d8ubd; see also Gary J. Gates, LGBT Demographics: Comparisons Among Population-Based Surveys, THE WILLIAMS INST. (Oct. 2014), available at https://tinyurl.com/y8mn6hjw (summarizing various surveys conducted from 2006 to 2014, the results of which implied that between 5.2 and 9.5 million adults in the U.S. identified as LGBT).
7

Parcel Serv., Inc., 115 F. Supp. 3d 344, 361-66 (E.D.N.Y. 2015) (surveying
empirical literature on the prevalence of workplace discrimination against LGBT
employees and the lack of federal protections for gays and lesbians in the
workplace). Among the legislative findings in New York’s Sexual Orientation
Non-Discrimination Act was that “many residents of [New York] have
encountered prejudice on account of their sexual orientation, and that this prejudice
has severely limited or actually prevented access to employment … leading to
deprivation and suffering.” 2002 N.Y. Laws ch. 2, § 1.
There is consensus among efforts to measure employment discrimination
against LGBT individuals that such discrimination continues to be pervasive.13
One meta-analysis estimates that over 25% of all lesbian, gay, and bisexual
respondents had experienced sexual orientation discrimination (such as harassment
and wage discrimination) at the workplace in the past five years—a figure that rose
13 See, e.g., Jennifer C. Pizer, et al., Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 LOY. L.A. L. REV. 715, 719-22 (2012); Employment NonDiscrimination Act: Examining Equality at Work, Including S. 811, To Prohibit Employment Discrimination on the Basis of Sexual Orientation or Gender Identity Before S. Comm. on Health, Educ., Labor, and Pensions, 112th Cong. 8-10 (2012) (prepared statement of M.V. Lee Badgett) (describing evidence of continuing discrimination in sources such as: (1) official complaints filed in states that prohibit such conduct; (2) controlled experiments to measure the treatment of LGBT job applicants; (3) comparisons of wages earned by LGBT employees and their heterosexual peers; and (4) self-reported experiences), available at https://tinyurl.com/ycqk6ntb.
8

to 42% when expanded to cover their entire working lives.14 Rates of
discrimination were even higher for LGBT persons who did not hide their sexual
orientation at work, with harassment the most common reported form of
discrimination.15 And nearly one in ten out gay, lesbian, or bisexual respondents
reported losing a job due to sexual orientation discrimination in the last five
years.16 Such discrimination is not hidden—up to 30% of heterosexual
respondents reported having witnessed anti-gay discrimination at the workplace.17
Significantly, sexual orientation discrimination tends to be higher in
jurisdictions without non-discrimination laws.18 See infra Part III. In addition,
workplace discrimination tends to decrease in response to legal rules against it.19
14 Brad Sears & Christy Mallory, Documented Evidence of Employment Discrimination & Its Effects on LGBT People, THE WILLIAMS INST. 4 (July 2011), available at https://tinyurl.com/ld8w42w; id. at 1-2 (prior work documenting discrimination against LGBT persons has drawn data from “field studies, controlled experiments, academic journals, court cases, state and local administrative complaints, complaints to community-based organizations, and in newspapers, books and other media”).
15 Id. at 4-5; see also PEW RESEARCH CTR., A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times 42 (June 2013), available at https://tinyurl.com/nmfpx7a (21% of LGBT persons report unequal treatment by their employer).
16 Sears & Mallory, supra n.14, at 5. 17 Pizer, supra n.13, at 727. 18 See András Tilcsik, Pride and Prejudice: Employment Discrimination Against Openly Gay Men in the United States, 117 AM. J. SOC. 586, 614-15 (2011). 19 See Laura G. Barron & Michelle Hebl, The Force of Law: The Effects of Sexual Orientation Antidiscrimination Legislation on Interpersonal Discrimination
(footnote continued)
9

B. Excluding Sexual Orientation From Title VII’s Scope Leaves Employees Vulnerable To Discrimination And Undermines Inclusive Workplaces
Amici recognize that their employees are essential to their success and are, in
many ways, their most valuable assets. Accordingly, amici are strong proponents
of anti-discrimination laws and policies, which are linked to higher morale and
productivity. Sexual orientation discrimination—even the mere risk of such
discrimination—impedes productivity by instilling unnecessary anxiety in
employees and creating a culture that suffocates openness.20 In the absence of full
protection from discrimination, LGBT employees may seek to protect themselves
by hiding who they are, a practice linked by substantial research to poor workplace
and health outcomes.21
in Employment, 19 PSYCH. PUB. POL’Y & L. 191, 200-02 (2013) (summarizing studies finding that antidiscrimination laws reduce discrimination against LGBT individuals by employers, “even after controlling for those community variables shown to affect both the adoption of antidiscrimination laws and prejudice in the absence of legislation”); Luke A. Boso, Acting Gay, Acting Straight: Sexual Orientation Stereotyping, 83 TENN. L. REV. 575, 603 (2016) (“[S]tudies have shown that sexual orientation inclusive anti-discrimination laws and policies significantly decrease reports of discrimination in the workplace.”).
20 M.V. Lee Badgett, et al., The Business Impact of LGBT-Supportive Workplace Policies, THE WILLIAMS INST. 26 (May 2013), available at https://tinyurl.com/y7mtb6um.
21 See id.; see also Burns, supra n.8, at 33 (“Gay and transgender employees who are out at work are 20 to 30% more productive than their closeted counterparts.”); Pizer, supra n.13, at 735-37.
10

Hiding one’s sexual orientation is a rational response to the fact that those persons who are out in the workplace are more likely to experience discrimination than their closeted peers.22 Fear of discrimination has also been shown to exact a significant toll on employees—manifesting in, inter alia, attitudes toward one’s career; increased stress; difficulty trusting coworkers and superiors; and experiences of isolation, frustration, anxiety, depression, and low self-esteem.23
LGBT employees cannot perform effectively when they are subject to the ever-present possibility of discrimination. Productivity decreases when workplaces are unwelcoming or hostile to LGBT workers—these workers, for example, report spending time looking for other jobs, feeling exhausted from expending energy to hide their identities, and being distracted due to a negative environment.24
“Laws are perhaps the strongest of social structures that uphold and enforce stigma,”25 and excluding a class of persons from legal protections sends a strong
22 See Sears & Mallory, supra n.14. 23 Pizer, supra n.13, at 736-37, 740-41. 24 HUMAN RIGHTS CAMPAIGN, The Cost of the Closet and the Rewards of Inclusion: Why the Workplace Environment for LGBT People Matters to Employers 2-3, 22 (May 2014), available at https://tinyurl.com/ycbzwzme. Other ways productivity is negatively affected by an unwelcoming LGBT workplace environment included when LGBT workers responded to this culture by avoiding a specific project, avoiding a social event, or avoiding certain coworkers. Id. at 22. 25 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 974 (N.D. Cal. 2010).
11

message in the workplace. Excluding sexual orientation from anti-discrimination
protections has a stigmatizing effect on LGBT employees, resulting in negative
consequences for employee health and productivity.26 For example, whereas
nearly 10% of LGBT employees reported finding a new job to escape a workplace
that was not accepting, over 25% of LGBT employees reported staying in a job
specifically because it offered an inclusive, safe workplace.27
The failure of non-discrimination protections to include LGBT employees
takes a heavy toll on businesses’ bottom lines and, in the aggregate, hurts
economic growth. The U.S. economy could save as much as $8.9 billion by
protecting and welcoming LGBT employees in the workplace—more than any
26 See, e.g., Mark L. Hatzenbuehler, et al., Structural Stigma and All-Cause Mortality in Sexual Minority Populations, 103 SOC. SCI. & MED. 33, 37 (2014) (finding life expectancy reduced by an average of 12 years for sexual minorities living in communities with high levels of anti-gay prejudice); Mark L. Hatzenbuehler, et al., Stigma as a Fundamental Cause of Population Health Inequalities, 103 AM. J. PUB. HEALTH 813, 816 (2013) (noting the corrosive impact of stigma on physical and mental health, social relationships, and self-esteem); Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence, 129 PSYCHOL. BULL. 674, 679-85 (2003) (summarizing empirical evidence of “minority stress” in LGB populations and attendant health consequences); Vickie M. Mays & Susan D. Cochran, Mental Health Correlates of Perceived Discrimination Among Lesbian, Gay, and Bisexual Adults in the United States, 91 AM. J. PUB. HEALTH 1869, 1874 (2001) (finding “robust association between experiences of discrimination and indicators of psychiatric morbidity” and noting that “social factors, such as discrimination against gay individuals, function as important risk factors for psychiatric morbidity”).
27 See HUMAN RIGHTS CAMPAIGN, supra n.24, at 23.
12

other country.28 One study, for example, concluded that businesses in one state
“risk[ed] losing $8,800 on average for each LGBT employee that leaves the state
or changes jobs because of the negative environment.”29 Such costs can be
significantly higher depending on the job.30
III. THE PATCHWORK OF EXISTING ANTI-DISCRIMINATION LAWS CREATES A FRACTURED WORKFORCE, HARMING BUSINESS INTERESTS
To be sure, some states and localities have enacted provisions prohibiting
sexual orientation discrimination, and some companies have voluntarily enacted
similar policies. While laudable, these provisions cannot substitute for a uniform
federal law guarding against discrimination. Today, residents of 23 states and the
District of Columbia are indisputably protected from sexual orientation
discrimination,31 but the remaining 27 states offer no explicit protection under state
law or lack favorable federal precedent.
28 Ian Johnson & Darren Cooper, LGBT Diversity: Show Me the Business Case, OUT NOW 5, 47 (2015), available at https://tinyurl.com/ycv8rk5o.
29 Christy Mallory & Brad Sears, Discrimination, Diversity, and Development: The Legal and Economic Implications of North Carolina’s HB2, THE WILLIAMS INST. 2 (May 2016) (emphasis added), available at https://tinyurl.com/y6wpzoj3.
30 See Burns, supra n.8, at 10 (assessing replacement costs as between $75,000 and $211,000 for an executive with $100,000 salary).
31 Twenty-two states prohibit sexual orientation discrimination in private employment by statute. Cal. Gov’t Code § 12940; Colo. Rev. Stat. § 24-34-402; Conn. Gen. Stat. § 46a-81c; Del. Code Ann. tit. 19, § 711; Haw. Rev. Stat. § 3782; 775 Ill. Comp. Stat. Ann. 5/1-102; Iowa Code § 216.6; Me. Rev. Stat Ann. tit. 5,
(footnote continued)
13

Moreover, local and state laws often differ in important ways from the
established protections under Title VII. For example, “some state laws do not
allow for recovery of punitive damages at all, or they impose caps that are lower
than those under Title VII.”32 Although protections against sexual orientation
discrimination are evolving, they are treated inconsistently in federal courts and are
often under-inclusive or nonexistent at state and local levels.33
§ 4571; Md. Code Ann., State Gov’t § 20–606; Mass. Gen. Laws ch. 151B, § 4; Minn. Stat. § 363A.08; Nev. Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:7; N.J. Stat. Ann. §§ 10:5-4, 10:5-12; N.M. Stat. Ann. § 28-1-7; N.Y. Exec. Law § 296; Or. Rev. Stat. § 659A.030; R.I. Gen. Laws § 28-5-7; Utah Code Ann. § 34A-5-106; Vt. Stat. Ann. tit. 21, § 495; Wash. Rev. Code §§ 49.60.030, 49.60.180; Wis. Stat. § 111.36. The District of Columbia similarly prohibits such discrimination in private employment. D.C. Code § 2-1402.11. Indiana prohibits sexual orientation discrimination under Title VII pursuant to Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017).
32 Sandra F. Sperino, The New Calculus of Punitive Damages for Employment Discrimination Cases, 62 OKLA. L. REV. 701, 716 n.96 (2010) (collecting examples of states with less beneficial punitive damages provisions).
33 Even where state or local laws exist against sexual orientation discrimination, they do not always provide the same level of protection as Title VII. For example, the state anti-discrimination statutes of Delaware, Vermont, and Washington do not prohibit discrimination based on perceived sexual orientation. See, e.g., Capek v. BNY Mellon, N.A., 2016 WL 2993211, at *3 (S.D.N.Y. May 23, 2016) (agreeing with “the weight of authority in other circuit and district courts, which hold that claims of discrimination based on a mistaken ‘perception’ are cognizable” until Title VII and collecting authority, including 2006 EEOC Compliance Manual); EEOC, COMPLIANCE MAN. § 15-II (2006) (“Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.”); EEOC, Employment Discrimination Based on Religion, Ethnicity, or Country of Origin, available at https://tinyurl.com/y7fwz8sj
(footnote continued)
14

An interpretation of Title VII that excludes sexual orientation from our
national civil rights laws against sex discrimination makes it more difficult and
expensive for those doing business in those jurisdictions to recruit LGBT
employees. Reading sexual orientation out of federal anti-discrimination laws
leaves LGBT employees and their families vulnerable to employment
discrimination and economic disruption because such employees are guaranteed
protection only by (at best) a patchwork of inconsistent, and often under-inclusive,
state and local laws. The uncertainty and vulnerability LGBT workers face results
in diminished employee health, productivity, job engagement, and satisfaction.34
LGBT employees risk losing the right to be free from discrimination merely
because they transfer offices from one jurisdiction to another.35
(noting that Title VII prohibits “discriminating because of the perception or belief that a person is a member of a particular” group).
34 See Sears & Mallory, supra n.14, at 15-16. 35 Family members of LGBT employees could also be jeopardized by taking a job in or transferring to a jurisdiction without adequate nondiscrimination laws. As of late 2015, there were approximately 972,000 people in a same-sex marriage in the United States, and an estimated 1 million cohabiting same-sex couples. See Jeffrey M. Jones & Gary J. Gates, Same-Sex Marriages Up After Supreme Court Ruling, GALLUP (Nov. 5, 2015), available at https://tinyurl.com/ydgazdcd; Gary J. Gates & Frank Newport, An Estimated 780,000 Americans in Same-Sex Marriages, GALLUP (Apr. 24, 2015), available at https://tinyurl.com/y9pryqbs. More than 1 in 4 married same-sex couples are raising children. Gary J. Gates & Taylor N. T. Brown, Marriage and Same-sex Couples after Obergefell, THE WILLIAMS INST. 4 (Nov. 2015), available at https://tinyurl.com/y6ut343k; see also Gary J. Gates, Marriage and Family: LGBT Individuals and Same-Sex Couples, 25 FUTURE OF
(footnote continued)
15

Accordingly, companies conducting businesses in places that offer lesser or no such protections are at a disadvantage in recruiting the best employees for operations in those jurisdictions. Similarly, amici’s LGBT employees (and employees who prefer to work in a community that does not tolerate discrimination) are less willing to transfer to locations where such discrimination is permitted, undermining businesses’ ability to organize a workforce without regard for such arbitrary legal barriers. In this way, excluding sexual orientation discrimination from Title VII’s protections undermines businesses’ efforts to recruit, organize, and retain talent.
Amici are committed to equal treatment and equal opportunity regardless of sexual orientation. But amici cannot create widespread equality in the workplace by themselves; Title VII plays a crucial role in creating and cultivating workplaces that embody equality by affirming the civil right to be free from discrimination.36 By recognizing that sexual orientation discrimination is prohibited under Title VII, this Court would remove an artificial barrier that restricts the free flow of resources, ideas, and capital. Because businesses benefit from clear, administrable
CHILDREN, no. 2 at 67 (Fall 2015), available at https://tinyurl.com/ya6n23yz (“Though estimates vary, as many as 2 million to 3.7 million U.S. children under age 18 may have a lesbian, gay, bisexual, or transgender parent, and about 200,000 are being raised by same-sex couples.”). For LGBT parents, the economic stakes of working in a jurisdiction that lacks legal protections are especially high.
36 See Barron & Hebl, supra n.19 at 192-202; Boso, supra n.19 at 603.
16

rules and a diverse workforce free from discrimination, this en banc Court should hold that Title VII prohibits sexual orientation discrimination.
CONCLUSION The failure to recognize that Title VII provides uniform, urgently needed protection against sexual orientation discrimination in employment is bad for employees, workplace culture, and the bottom line. Amici urge this en banc Court to hold that Title VII prohibits discrimination on the basis of sexual orientation.

Dated: June 26, 2017

Respectfully submitted,
QUINN EMANUEL URQUHART & SULLIVAN, LLP
By: /s/ Todd Anten Todd Anten Justin T. Reinheimer Cory D. Struble 51 Madison Ave., 22nd Floor New York, NY 10010 (212) 849-7000 Counsel for Amici Curiae AdRoll, Inc.; Ben & Jerry’s; Betterment; 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;
17

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.
Thomas W. Burt Microsoft Corporation 1 Microsoft Way Redmond, WA 98052 (425) 703-6323 Counsel for Amicus Curiae Microsoft
Corporation
Sigismund L. Sapinski Jr. Sun Life Financial (U.S.) Services
Company, Inc. 175 Addison Road Windsor, CT 06095 (860) 737-6597 Counsel for Amicus Curiae Sun Life
Financial (U.S.) Services Company, Inc.
18

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), this brief complies with the type-volume limitations of Fed. R. App. P. 29(a)(5) and Local Circuit Rule 29.1(c) because it contains 4,069 words, based on the Microsoft Word word-count function, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it was prepared with Microsoft Word in 14-point Times New Roman, a proportionally spaced font.

Dated: June 26, 2017

/s/ Todd Anten Todd Anten

19

CERTIFICATE OF SERVICE I hereby certify that on the 26th day of June, 2017, I electronically filed the foregoing brief with the United States Court of Appeals for the Second Circuit via the appellate CM/ECF system and filed 15 copies of the foregoing brief with the Court by next business day delivery, postage pre-paid. I also certify that all counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system.

Dated: June 26, 2017

/s/ Todd Anten Todd Anten

20

 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda,
Plaintiffs-Appellants, v.
ALTITUDE EXPRESS, DOING BUSINESS AS SKYDIVE LONG ISLAND; and RAY MARNARD Defendants-Appellees.
On Appeal from United States District Court for the Eastern District of New York, No. 10 Civ. 4334 (Bianco, J.)
BRIEF OF AMICI CURIAE GLBTQ LEGAL ADVOCATES & DEFENDERS (“GLAD”) AND NATIONAL CENTER FOR LESBIAN RIGHTS (“NCLR”) IN SUPPORT OF PLAINTIFFS-APPELLANTS

MARY BONAUTO

ALAN E. SCHOENFELD

GLBTQ LEGAL ADVOCATES & DEFENDERS WILMER CUTLER PICKERING

30 Winter Street, Suite 800

HALE AND DORR LLP

Boston, MA 02108

7 World Trade Center

(617) 426-1350

250 Greenwich Street

Counsel for Amicus Curiae GLAD

New York, NY 10007 (212) 937-7518

CHRISTOPHER STOLL NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 392-6257
Counsel for Amicus Curiae NCLR

DAVID M. LEHN WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania AVENUE NW Washington, DC 20006 (202) 663-6000
CHRISTOPHER D. DODGE WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 513-6000

June 26, 2017

Counsel for Amici Curiae GLAD and NCLR

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus curiae GLBTQ Legal Advocates & Defenders certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus curiae National Center for Lesbian Rights certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF AUTHORITIES ....................................................................................iv INTEREST OF AMICI CURIAE ...............................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................2 ARGUMENT .............................................................................................................4
I. Simonton Has Proved To Be An Unworkable Standard And Ought Not Be Given The Benefit Of Stare Decisis ......................4 A. Simonton Has Sown Confusion And Inconsistency In Title VII Cases Brought By Lesbian, Gay, And Bisexual Employees....................................................................4 B. Simonton Ought Not Be Given The Benefit Of Stare Decisis..............................................................................14
II. Recognizing That Sexual Orientation Discrimination Is A Form Of Sex Discrimination Is Compelled By Title VII’s Text And Doctrine...............................................................................17 A. Sexual Orientation Discrimination Is Discrimination “Because Of … Sex” Because But For The Plaintiff’s Sex, The Treatment Would Have Been Different .................................................................19 B. Concluding That Sexual Orientation Discrimination Is “Because Of … Sex” Accords With Settled Title VII Doctrine ................................................23
CONCLUSION ........................................................................................................28
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TABLE OF AUTHORITIES
CASES Page(s)
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).......................................................................................15
Alleyne v. United States, 133 S. Ct. 2151 (2013)...................................................................................16
Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004) ..........................................................................23
Berry v. United States, No. 93-8652, 1995 WL 33284 (S.D.N.Y. Jan. 27, 1995)................................5
Boutillier v. Hartford Public Schools, 221 F. Supp. 3d 255 (D. Conn. 2016) .............................................6, 9, 17, 26
Boutillier v. Hartford Public Schools, No. 13-1303, 2014 WL 4794527 (D. Conn. Sept. 25, 2014) ........................10
Cargian v. Breitling USA, Inc., No. 15-01084, 2016 WL 5867445 (S.D.N.Y. Sept. 29, 2016)........................4
Centola v. Potter, 183 F.Supp.2d 403 (D. Mass. 2002)..............................................................18
Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ...................................................................passim
Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y 2016) ..........................................................6, 8
City of Los Angeles, Department of Water & Power v. Manhart, 435 U.S. 702 (1978).......................................................................................19
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ............................................................................6
DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 2000) ............................................................................5
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EEOC v. Scott Medical Health Center, P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ...........................................................17
Estate of D.B. by Briggs v. Thousand Islands Central School District, 169 F. Supp. 3d 320 (N.D.N.Y. 2016) ..........................................................11
Fabian v. Hospital of Central Connecticut, 172 F. Supp. 3d 509 (D. Conn. Mar. 18, 2016)...............................................7
Garvey v. Childtime Learning Center, No. 16-1073, 2016 WL 6081436 (N.D.N.Y. Sept. 12, 2016) .........................8
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) ............................................................................23
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) ..................................................................passim
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) ..............................................................24, 26, 27
Howell v. North Central College, 320 F. Supp. 2d 717 (N.D. Ill. 2004).............................................................17
Kay v. Independent Blue Cross, 142 F. App’x 48 (3d Cir. 2005) .......................................................................8
Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015)...................................................................................14
Loving v. Virginia, 388 U.S. 1 (1967).....................................................................................25, 27
Lugo v. Shinseki, No. 06-13187, 2010 WL 1993065 (S.D.N.Y. May 19, 2010).........................9
Magnusson v. County of Suffolk, No. 14-3449, 2016 WL 2889002 (E.D.N.Y. May 17, 2016) ........................10
Maroney v. Waterbury Hospital, No. 10-1415, 2011 WL 1085633 (D. Conn. Mar. 18, 2011).........................10
Martin v. New York State Department of Correctional Services, 224 F. Supp. 2d 434 (N.D.N.Y. 2002) ............................................................8
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Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014).............................................................................13, 14
Monell v. Department of Social Services, 436 U.S. 658 (1978).......................................................................................14
Morales v. ATP Health & Beauty Care, Inc., No. 06-01430, 2008 WL 3845294 (D. Conn. Aug. 18, 2008) ..................9, 10
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)...................................................................................25
Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986) .......................................................................25
Pearson v. Callahan, 555 U.S. 223 (2009).......................................................................................14
Philpott v. New York, No. 16-6778, 2017 WL 1750398 (S.D.N.Y. May 3, 2017).......................6, 17
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).......................................................................................15
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).........................................................................4, 6, 22, 26
Riccio v. New Haven Board of Education, 467 F. Supp. 2d 219 (D. Conn. 2006) ...........................................................10
Roberts v. United Parcel Service, Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015)...........................................................27
Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298 (S.D.N.Y. 1996) ..........................................................24, 25
Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999) ...................................................................12, 13
Shi Liang Lin v. U.S. Department of Justice, 494 F.3d 296 (2d Cir. 2007) ..........................................................................14
Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009) ......................................................................14, 15
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Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .....................................................................passim
Taken v. Oklahoma Corp. Commission, 125 F.3d 1366 (10th Cir. 1997) .......................................................................5
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) .........................................................................25
Trigg v. New York City Transit Authority, No. 99-4730, 2001 WL 868336 (E.D.N.Y. July 26, 2001) .............................8
Tyrrell v. Seaford Union Free School District, 792 F. Supp. 2d 601 (E.D.N.Y. 2011)...........................................................10
Vasquez v. Hillery, 474 U.S. 254 (1986).......................................................................................14
Videckis v. Pepperdine University, 150 F. Supp. 3d 1151 (C.D. Cal. 2015)...........................................................7
ADMINISTRATIVE DECISIONS
Baldwin v. Foxx, No. 2012-24738-FAA-03, 2015 WL 4397641 (EEOC July 15, 2015) ..............................................................................................................21
STATUTES
42 U.S.C. § 2000e-2(a) ............................................................................................18
OTHER AUTHORITIES
Kanazawa, Schwenk and the Ambiguity in Federal “Sex” Discrimination Jurisprudence: Defining Sex Discrimination Dynamically Under Title VII, 25 Seattle U. L. Rev. 255 (2001) ..................13
Ryan, A “Queer” by Any Other Name: Advocating A Victim-Centered Approach to Title VII and Title IX Same-Sex Sexual Harassment Claims, 13 B.U. Pub. Int. L.J. 227 (2004) ................................11
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INTEREST OF AMICI CURIAE1 Through strategic litigation, public policy advocacy, and education, GLBTQ Legal Advocates & Defenders (“GLAD”) works in New England and nationally to create a just society free of discrimination based on gender identity and expression, HIV status, and sexual orientation. GLAD has litigated widely in both state and federal courts in all areas of the law in order to protect and advance the rights of lesbians, gay men, bisexuals, transgender individuals, and people living with HIV and AIDS. GLAD has an enduring interest in ensuring that employees receive full and complete redress for violation of their civil rights in the workplace. The National Center for Lesbian Rights (“NCLR”) is a national non-profit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal treatment for LGBT people and their families in cases across the country involving constitutional and civil rights. NCLR has a particular interest in promoting equal opportunity for LGBT people in the workplace through legislation, policy, and litigation, and represents LGBT people in employment and other cases in courts throughout the country.
1 Counsel for the parties have not authored this brief. The parties and counsel for the parties have not contributed money that was intended to fund preparing or submitting the brief. No person other than the amicus curiae contributed money that was intended to fund preparing or submitting this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), this Court concluded that although Title VII does not allow discrimination claims based on sexual orientation, it does permit claims based on sexual stereotyping—but not if that theory is being used merely to “bootstrap” a claim based on sexual orientation. Simonton’s conclusion was not rooted in the text of the statute, nor did it account for well-established Title VII doctrine. In effect, Simonton created a sui generis set of rules that apply only to sex discrimination claims brought by lesbian, gay, and bisexual employees and not to claims brought by other employees. As numerous judges inside and outside this Circuit have observed, that standard is simply impossible to apply with any degree of consistency or fairness. The Court should avail itself of this opportunity to repudiate Simonton’s unworkable rule and hold that discrimination based on sexual orientation is a type of discrimination because of sex under Title VII. That is so for the straightforward reason that, but for the plaintiff’s sex, discrimination based on sexual orientation would not occur. For example, if a man is treated adversely because he is attracted to men, then he has been discriminated against because of his sex—if he were instead a woman who was attracted to men, he would not have been treated that way. Recognition of such claims does not therefore require a view that the statute’s meaning has evolved alongside extra-judicial developments. It merely
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requires the application of Title VII in accordance with its text and established doctrines.
This brief proceeds in two parts. We first describe the confusion Simonton has sown, as it has required judges to parse a nonexistent line between discrimination claims brought by lesbian, gay, and bisexual employees based on their sexual orientation (which are impermissible) and those brought by lesbian, gay, and bisexual employees based on sex stereotyping (which are permissible, as long as they are not “bootstrapping” a claim based on sexual orientation). We then explain why established principles of stare decisis do not support leaving Simonton in place, particularly because the rule in that case has proved unworkable and there are no legitimate reliance interests to protect by maintaining the existing rule. In Part II, we show how Simonton departs from settled Title VII case law, and argue that bringing sexual orientation cases into line with Title VII case law requires repudiating Simonton and holding that claims of sexual orientation discrimination are cognizable.
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ARGUMENT I. SIMONTON HAS PROVED TO BE AN UNWORKABLE STANDARD AND OUGHT
NOT BE GIVEN THE BENEFIT OF STARE DECISIS A. Simonton Has Sown Confusion And Inconsistency In Title VII
Cases Brought By Lesbian, Gay, And Bisexual Employees This Court concluded in Simonton that Title VII’s prohibition against sex discrimination permitted litigants to bring claims premised upon sexual stereotype discrimination, but not sexual orientation discrimination. The decision explained that sexual stereotype discrimination, deemed actionable under Title VII by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), could not be applied to cover discrimination based on sexual orientation because “not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Simonton, 232 F.3d at 37. Accordingly, the decision barred plaintiffs from using a sexual stereotyping theory to “bootstrap protection for sexual orientation into Title VII,” though independent “relief would be available for discrimination based upon sexual stereotypes.” Id.; see, e.g., Cargian v. Breitling USA, Inc., No. 15-01084, 2016 WL 5867445, at *4 (S.D.N.Y. Sept. 29, 2016) (“Courts in this Circuit must distinguish between claims based on discrimination targeting sexual orientation, which are not cognizable under Title
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VII, and cognizable claims based on discrimination targeting nonconformity with
gender stereotypes.”).2
Simonton thus invited plaintiffs to try to thread the needle between a claim
based on purportedly pure sexual stereotyping and a claim that merely uses a
theory of sexual stereotyping to “bootstrap” a sexual orientation claim. That has
saddled courts with what judges in this Circuit and elsewhere have come to
recognize is the futile task of discerning on which side of a nonexistent line a
particular claim falls. Indeed, even while hewing to Simonton, this Court has
acknowledged that Simonton is the source of “confusion” within the Circuit,
2 The Court’s error in Simonton is traceable in part to its conclusion that “Title VII does not proscribe discrimination because of sexual orientation” because sexual orientation is a form of “sexual affiliation,” which is not covered by the term “sex” in the statute. Simonton, 232 F.3d at 36. In deeming sexual orientation a form of “sexual affiliation,” the Court misunderstood the jurisprudence regarding that term. Apart from Simonton, courts have used “sexual affiliation” to refer to “sexual activity regardless of gender.” DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306-307 (2d Cir. 2000); see also Taken v. Okla. Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997). As the facts of those cases illustrate, discrimination because of sexual affiliation occurs when an employer’s act is based on whether a person is in a particular romantic relationship, such as when an employer favors a spouse or boyfriend or girlfriend. Such claims do not qualify as sex discrimination because changing the sex of the victim would not change the treatment; only changing their relationship status would. See also Berry v. United States, No. 93-86521995 WL 33284, at *3 (S.D.N.Y. Jan. 27, 1995) (woman failed to state sex-discrimination claim where harassment was due solely to her relationship with husband, an ex-employee; “the alleged mistreatment was based on the identity of Mrs. Berry’s husband rather than her sex…”). For reasons explained below, the treatment of sexual affiliation discrimination has no purchase for sexual orientation discrimination because changing the sex of the victim of sexual orientation discrimination actually would change the treatment.
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Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (per curiam), and that “gender stereotyping claims can easily present problems for an adjudicator … for the simple reason that stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality,” Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (alterations omitted); see also Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring) (observing that “[n]umerous district courts throughout the country have also found [Simonton’s] approach to gender stereotype claims unworkable”).
Courts in this Circuit are not alone in their confusion. The en banc Seventh Circuit recently discussed the “confused hodge-podge of cases” that have attempted to extricate gender nonconformity claims from sexual orientation claims. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 342 (7th Cir. 2017) (en banc); see also, e.g., Philpott v. New York, No. 16-6788, 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017) (commenting on the “‘illogical’ artificial distinction between gender-stereotyping discrimination and sexual-orientation discrimination”); Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 270 (D. Conn. 2016) (“[R]econciliation of Simonton and Price Waterhouse produces untenable results.”); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 620 (S.D.N.Y. 2016) (“The lesson imparted by the body of Title VII litigation
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concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims”), aff’d in part, rev’d in part, 852 F.3d 195 (2d Cir. 2017) (per curiam); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159-1160 (C.D. Cal. 2015) (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct. … It is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes.”).
Courts adhering to the dichotomy adopted in Simonton are forced to engage in an artificial and ultimately futile analysis to try to distinguish homophobic slurs or other anti-gay workplace conduct from sex-based discrimination. See Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 524 n.8 (D. Conn. Mar. 18, 2016) (“a woman might have a Title VII claim if she was harassed or fired for being perceived as too ‘macho,’ but not if she was harassed or fired for being perceived as a lesbian, and courts and juries have to sort out the difference on a case-by-case basis”). For instance, one court dismissed a sexual stereotyping claim because “[i]n contrast” to what it deemed to be the paradigm of such a claim, the complaint was “rife with references to sexual orientation, homophobia, and accusations of discrimination based on homosexuality,” including allegations that a superior had
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called the plaintiff a “fag[g]ot … faggot ass … sissy”—as if such epithets did not play on the victim’s deviation from masculine stereotypes. Trigg v. N.Y. City Transit Auth., No. 99-4730, 2001 WL 868336, at *5-6 (E.D.N.Y. July 26, 2001). More recently, a district court concluded that a plaintiff was “clearly attempting to bring a Title VII claim based on sexual orientation” because the complaint referenced the phrase “sexual orientation at least twice” and identified the plaintiff as a “male homosexual.” Garvey v. Childtime Learning Ctr., 16-1073, 2016 WL 6081436, at *3 (N.D.N.Y. Sept. 12, 2016). Another district court recently concluded that a plaintiff’s allegation that a coworker told him he was “‘effeminate and gay so he must have AIDS’” failed to state a sexual stereotyping claim because this single allegation of stereotyping was outweighed by “multiple illustrations of [the co-worker’s] animus towards gay individuals.” Christiansen, 167 F. Supp. 3d at 621; see also Martin v. N.Y. State Dep’t of Corr. Servs., 224 F. Supp. 2d 434, 447 (N.D.N.Y. 2002) (“The torment endured by Martin, as reprehensible as it is, relates to his sexual orientation. The name-calling, the lewd conduct and the posting of profane pictures and graffiti are all of a sexual, not gender, nature.”); cf. Kay v. Indep. Blue Cross, 142 F. App’x 48, 51 (3d Cir. 2005) (comparing the relative frequency of comments such as “ass wipe,” “fag,” “gay,” “queer,” “real man” and “fem” to conclude that it was “clear that Kay’s claim is based upon discrimination that is motivated by perceived sexual orientation”).
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The result of this lexical bean counting is that courts find it difficult to assess—much less reach a proper conclusion in—discrimination cases brought by plaintiffs who are, or are perceived to be, lesbian, gay, or bisexual. In one recent case, two defendants made a number of disparaging comments about the plaintiff, a woman who was transgender. The Court concluded that the first co-worker’s comments—calling the plaintiff a “faggot”—and some of the second co-worker’s comments “appear to be directed at Morales’ sexual orientation, and therefore, they are not actionable under Title VII. However, [the second co-worker’s other comments] appear to be directed at Morale’s failure to conform to societal stereotypes about how men should appear, and therefore” were actionable. Morales v. ATP Health & Beauty Care, Inc., No. 06-01430 (AWT), 2008 WL 3845294, at *8 (D. Conn. Aug. 18, 2008). In other words, although all the comments were part of a single course of conduct and plainly evidenced sex stereotyping, the overtly “gay” words were excluded from the case as if they were irrelevant. See Boutillier, 221 F. Supp. 3d at 269 (“[S]exual orientation discrimination must be excluded from the equation when determining whether allegations or evidence of gender non-conformity discrimination are sufficient.”); Lugo v. Shinseki, No. 06-13187, 2010 WL 1993065, at *10 (S.D.N.Y. May 19, 2010) (“The comments addressed to Lugo’s perceived sexual orientation do not
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enter our analysis because Title VII does not prohibit harassment or discrimination because of sexual orientation.”) (quotation omitted).
As a result of this confusion, discrimination claims have been “especially difficult for gay plaintiffs to bring.” Maroney v. Waterbury Hosp., No. 10-1415, 2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011). Indeed, cases presenting many nearly identical facts have reached inconsistent results as district courts struggle to apply the Simonton rule to complex fact patterns. Compare Morales, 2008 WL 3845294, at *8 (rejecting evidence of homophobic slurs by supervisor as reflecting sexual orientation discrimination rather than gender-based harassment), Magnusson v. County of Suffolk, No. 14-3449, 2016 WL 2889002, *8 (E.D.N.Y. May 17, 2016) (same), and Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 623 (E.D.N.Y. 2011) (same in Title IX case), with Boutillier v. Hartford Pub. Sch., No. 13-1303, 2014 WL 4794527, *2 (D. Conn. Sept. 25, 2014) (holding that allegations plaintiff “was subjected to sexual stereotyping during her employment on the basis of her sexual orientation” were sufficient to state a claim under Title VII), and Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006) (holding that plaintiff who was “targeted by other female students and called a variety of pejorative epithets, including ones implying that she is a female homosexual,” stated a claim under Title IX).
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Such is the confusion that one district court even held that a genderstereotyping claim may be brought only if “the harassment consists of homophobic slurs directed at a heterosexual.” Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320, 332-333 (N.D.N.Y. 2016) (citation omitted; emphasis added). That perverse holding, although rejected by this Court, see Christiansen, 852 F.3d at 200, was not necessarily an unreasonable inference to draw from Simonton. As Chief Judge Katzmann explained in his recent Christiansen concurrence, Simonton’s dichotomy creates unique challenges for gay men, lesbians, and bisexual people, who alone bear the burden of showing that their discrimination was motivated by their perceived gender non-conformity rather than their sexual orientation; heterosexual plaintiffs bear no such burden. Christiansen, 852 F.3d at 205.
Litigants have predictably responded to Simonton’s artificial distinction by omitting references to sexual orientation from their complaints, even where homophobic slurs or other orientation-related facts are highly relevant to their discrimination claim.3 Some courts have played along, undoubtedly to the
3 See Ryan, A “Queer” by Any Other Name: Advocating A Victim-Centered Approach to Title VII and Title IX Same-Sex Sexual Harassment Claims, 13 B.U. Pub. Int. L.J. 227, 241 (2004) (“The Simonton opinion invites further conjecture into whether the plaintiff would have prevailed had he hidden his homosexuality from the court. The court’s unwillingness to analyze the facts critically without reference to Simonton’s sexuality evinces an inability to look beyond the terminology of the harassment …”).
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confusion of their fellow jurists. Although both out-of-Circuit and predating Simonton, the Eighth Circuit’s decision in Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999), is illustrative. There, the plaintiff was asked to perform sexual acts; given derogatory notes referring to his anatomy; called names such as “homo” and “jerk off”; and subjected to the exhibition of sexually inappropriate behavior by others. Id. at 865. The district court dismissed the complaint, holding the claim noncognizable because it alleged that the plaintiff was taunted due to his “perceived sexual preference.” Id. The Eighth Circuit reversed, explaining that “simply because … the harassment alleged by Schmedding includes taunts of being homosexual…[does not] thereby transform[] [the complaint] from one alleging harassment based on sex to one alleging harassment based on sexual orientation.” Id. In other words, it was plausible the plaintiff was taunted as a homosexual in “an effort to debase his masculinity, not … because he is homosexual or perceived as homosexual.” Id. Nonetheless, the court acknowledged that the references to the plaintiff’s sexual orientation confused the issue and that the complaint was “not a model of clarity.” Id. The Court concluded that “the best recourse is to remand the case to the district court with instructions that plaintiff be allowed to amend his complaint” “so as to delete” a reference to the phrase “perceived sexual preference.” Id.4 By causing plaintiffs to
4 As one commentator has noted, the Eight Circuit’s observation that a - 12 -

disavow reliance upon homophobic slurs or similar facts that may be probative of
sex discrimination, the Simonton rule denies courts highly relevant evidence,
inevitably leading to the rejection of many meritorious discrimination claims solely
because the plaintiff is lesbian, gay, or bisexual.
Given the lack of clarity and coherence Simonton has generated, its rule
ought to be reconsidered in favor of a clear rule. As explained below, the rule that
best accords with Title VII’s text and case law is that claims of discrimination on
the basis of sexual orientation are actionable as discrimination on the basis of sex.
See infra Part II.
B. Simonton Ought Not Be Given The Benefit Of Stare Decisis Although courts ought not “overturn [their] precedents lightly,” stare decisis
is “not an inexorable command.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct.
2024, 2036 (2014); see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296,
310 (2d Cir. 2007) (en banc) (“While stare decisis is undoubtedly of considerable
importance to questions of statutory interpretation, the Supreme Court ‘ha[s] never
homophobic slur may be animated by a desire to both demean another person’s sexual orientation and gender conformity reveals the fundamental futility of Simonton’s separation of orientation from stereotype. See Kanazawa, Schwenk and the Ambiguity in Federal “Sex” Discrimination Jurisprudence: Defining Sex Discrimination Dynamically Under Title VII, 25 Seattle U. L. Rev. 255, 284-285 (2001) (arguing that Schmedding suggests the “sex/sexual orientation dichotomy is inherently unworkable” and that “Courts should stop making mechanical and futile inquiries into what stereotypes are attached to masculinity or femininity on the one hand and what stereotypes are attached to sexual orientation on the other”).
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applied stare decisis mechanically to prohibit overruling … earlier decisions determining the meaning of statutes.’” (quoting Monell v. Dep’t of Social Serv., 436 U.S. 658, 695 (1978)). Indeed, the doctrine retains its utility only to the extent it “ensure[s] that legal rules develop ‘in a principled and intelligible fashion.’” Michigan, 134 S. Ct. at 2036 (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)). Where a rule “prove[s] unworkable,” Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401, 2410-2411 (2015), or where “experience has pointed up the precedent’s shortcomings,” Pearson v. Callahan, 555 U.S. 223, 233 (2009), stare decisis poses no impediment to repudiating prior decisions. See also Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67-69 (2d Cir. 2009) (overruling Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir. 2002), in view of the “strains on federal courts” imposed by the earlier decision).
As discussed, Simonton has created confusion and disarray in the courts of this Circuit, and the results for plaintiffs pressing Title VII claims have been inconsistent and unpredictable. This Court has not hesitated to revisit even recent precedent under similar circumstances. In Jaldhi, the Court repudiated its six-yearold decision in Winter Storm after district judges in the Circuit began “to question the correctness” of the earlier decision. 585 F.3d at 61. The standard set in Winter Storm had “prov[en] to be practically unworkable,” and the consequences for the courts, the parties, and their lawyers were “too significant to let th[e Court’s] error
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go uncorrected simply to avoid overturning a recent precedent.” Id. at 67. Thus, notwithstanding that “[o]verturning Winter Storm [would] dramatically affect the law … in our Circuit,” the Court saw fit to do so. Id. at 62. The Court should take the same step here.
Moreover, stare decisis does not ordain the outcome here because the rule laid down in Simonton is not “subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992). For purposes of determining the weight to be given to stare decisis in a given case, courts generally focus on the extent to which private parties have relied on existing precedent to shape their affairs. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 234 (1995). It is hard to imagine that employers intent on discriminating against lesbian, gay, and bisexual employees have, in the years since Simonton, shaped their conduct around the indecipherable line between sexual-stereotype and sexual-orientation discrimination. Nor is it plausible that lesbian, gay, and bisexual employees have based their workplace behavior around Simonton’s unintelligible rule. Rather, the absence of a principled way to determine how courts will rule on Title VII claims by lesbian, gay, or bisexual plaintiffs has left both employers and employees bereft of clear guidance. The instability and unpredictability inherent in such a scheme thwart reliance, leaving litigants to
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guess as to whether courts will categorize particular facts as evidence of sexual orientation discrimination or as evidence of sex discrimination. The divergent outcomes in factually similar cases (see supra pp. 10-11) confirm the fundamental unreliability of the current regime.
As Justice Sotomayor recently explained, “particularly in a case where the reliance interests are so minimal, and the reliance interests of private parties are nonexistent, stare decisis cannot excuse a refusal to bring ‘coherence and consistency’” to the law. Alleyne v. United States, 133 S. Ct. 2151, 2165 (2013) (Sotomayor, J., concurring). Overruling Simonton would not cause hardship or inequity; rather, it would eliminate the inconsistent and inequitable results made inevitable by the existing rule and provide clarity to employees and employers. II. RECOGNIZING THAT SEXUAL ORIENTATION DISCRIMINATION IS A FORM
OF SEX DISCRIMINATION IS COMPELLED BY TITLE VII’S TEXT AND DOCTRINE The result of the Simonton rule is that a gay plaintiff is allowed to bring a claim of sex-stereotyping discrimination involving his or her sexual orientation if the plaintiff does not explicitly identify as lesbian, gay, or bisexual or invoke his or her sexual orientation as the basis of the claim. As discussed above, that rule is untenable, and district courts rightly perceive that the law in this Circuit is “clearly in a state of flux.” Philpott, 2017 WL 1750398, at *2. This Court can and should
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now put its Title VII jurisprudence on sounder footing by holding that discrimination on the basis of sexual orientation is a form of sex discrimination.
That conclusion follows for several reasons, which were laid out by Chief Judge Katzmann in his Christiansen concurrence. First, Title VII’s plain text and traditional doctrines compel the conclusion that discrimination based on sexual orientation is discrimination “because of … sex.” Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring). The en banc Seventh Circuit recently took the same tack in concluding that “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively, 853 F.3d at 341. That decision was based on “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Id. at 351.
Second, contrary to Simonton’s crabbed view, sexual orientation discrimination is a paradigmatic instance of gender stereotyping. Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring). After all, “stereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes.” Boutillier, 221 F. Supp. 3d at 269; see also EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 841 (W.D. Pa. 2016); Howell v. N. Cent. Coll., 320 F. Supp. 2d 717, 723 (N.D. Ill. 2004); Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002).
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Third, recognizing that sexual orientation discrimination is a form of sex discrimination follows from this Court’s jurisprudence concerning associational discrimination. Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring).
Any of these three theories is sufficient to establish sexual orientation discrimination as a cognizable form of sex discrimination under Title VII. As explained below, the theory that sexual orientation discrimination is discrimination “because of … sex” is particularly straightforward and consonant with established Title VII doctrines. That theory therefore provides a compelling basis—though not the only one—to recognize sexual orientation claims as cognizable under Title VII.
A. Sexual Orientation Discrimination Is Discrimination “Because of … Sex” Because But For The Plaintiff’s Sex, The Treatment Would Have Been Different
Title VII makes it unlawful for an employer to “discriminate against any individual … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a). As the majority in Hively explains, the “tried and true” method in Title VII cases is “to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?” Hively, 853 F.3d at 345; accord City of L.A., Dep’t of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (under Title VII, applying “the simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be
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different’”). In applying this method in cases of sex discrimination, “[i]t is critical … to be sure that only the variable of the plaintiff’s sex is allowed to change.” Hively, 853 F.3d at 345.
Application of this “comparative method” shows that sexual orientation discrimination is discrimination because of sex. Where a woman is fired or harassed because of her attraction to other women, changing the single variable of sex—a man would not have been fired because of his attraction to women— reveals that the discrimination is because of sex, i.e., because of the victim’s membership in the class woman. As the majority in Hively concluded, such a scenario “describes paradigmatic sex discrimination.” Id.
This analysis betrays the error that underlies Simonton: Mr. Simonton would have not have been subject to an endless stream of homophobic invective if, all else constant, he had been a woman attracted to men. See Simonton, 232 F.3d at 35. Chief Judge Katzmann could not have put it more directly: “[S]exual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex … [B]ut for the employee’s sex, the employee’s treatment would have been different. Because this situation meets the statutory requirements of Title VII, the statute must extend to prohibit it.” Christiansen, 852 F.3d at 202-203 (Katzmann, C.J., concurring) (citations omitted); see also Hively, 853 F.3d at 357
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(Flaum, J., concurring) (“[T]he statute’s text commands” the conclusion that “discriminating against an employee for being homosexual violates Title VII’s prohibition against discriminating against that employee because of their sex”).
In her Hively dissent, Judge Sykes took issue with this use of the comparative method. In the dissent’s view, “the comparative method” as used by the majority was “not serving its usual and intended purpose; it [wa]s not invoked as a method of proof or a technique for evaluating the sufficiency of the plaintiff’s allegations or evidence.” 853 F.3d at 365. Rather, the dissent posited that the majority was improperly using the method to resolve “a pure question of statutory interpretation,” namely, whether the statutory term “sex” should now be interpreted to encompass “sexual orientation,” regardless of its original meaning. Id. at 366. One need not quarrel with the dissent’s conception of the comparative method as a tool for applying the law to a particular set of facts to see that its conclusion was wrong. The Hively majority was doing exactly what the dissent argued was necessary: using the comparative method to apply the statutory phrase “because of … sex” to the particular factual circumstances of that case, in which a woman alleged she faced workplace sex discrimination because she was a lesbian.
That comparative analysis did not alter or expand the meaning of Title VII; it simply laid bare the reality that treating someone differently because of his sexual orientation is in fact treating him differently because of his sex. See
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Baldwin v. Foxx, No. 2012-24738-FAA-03, 2015 WL 4397641 at *5 (EEOC July 15, 2015) (“‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”). And in that way, the majority’s comparative analysis, contrary to the dissent, did “ferret[] out a prohibited discriminatory motive as an actual cause of the adverse employment action” and specifically revealed that the discriminatory treatment allegedly experienced by the plaintiff due to her sexual orientation was “actually motivated by the plaintiff’s sex.” Hively, 853 F.3d at 366 (Sykes, J., dissenting).
The Hively dissent also contended that the majority “load[ed] the dice” in its comparative method analysis by changing two variables—sex and sexual orientation. Id. But that is simply not the case. As the Hively majority explained, “[i]t makes no sense to control for or rule out discrimination on the basis of sexual orientation if the question before us is whether that type of discrimination is nothing more or less than a form of sex discrimination.” Id. at 347.
Nor, on the other hand, does recognizing a claim of sexual orientation discrimination retroactively impute to the defendant an intent that was not there. The Hively dissent objected that “[a]n employer who refuses to hire a lesbian applicant because she is a lesbian only accounts for her sex in the limited sense that he notices she is a woman. But that’s not the object of the employer’s discriminatory intent, not even in part.” Id. at 367 (Sykes, J., dissenting) (citations
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omitted). That is wrong—not as a matter of statutory interpretation, but as a matter of fact. As the Supreme Court has explained, “Congress meant to obligate [a plaintiff] to prove that the employer relied upon sex-based considerations in coming to its decision.” Price Waterhouse v. Hopkins, 490 U.S. at 241-242 (emphasis added). Sexual orientation discrimination inherently involves sex-based considerations. Such a claim rests on the realization that when someone intentionally treats a person differently because of his or her sexual orientation, that differential treatment depends upon, and thus is “because of,” the person’s sex. The dissent’s hypothetical employer does not take a lesbian woman’s sex into account incidentally; the discriminatory employer takes it into account by treating her differently because she is a woman who is attracted to women, and not a man who is attracted to women.
B. Concluding That Sexual Orientation Discrimination Is “Because Of … Sex” Accords With Settled Title VII Doctrine
Although the comparative analysis described above suffices to show that sexual orientation discrimination is discrimination “because of … sex” and thus is actionable under Title VII, that conclusion is underscored by well-established Title VII doctrine. Indeed, only recognition of sexual orientation discrimination as a form of sex discrimination can be reconciled with settled Title VII case law.
First, one might object that sexual orientation discrimination is not because of sex because it does not entail discrimination against all members of a given sex
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but rather requires that the victim also possess another defining trait—namely, attraction to members of the same sex. Those features, however, have not precluded sex discrimination claims in other situations, and therefore they should not preclude sex discrimination claims based on sexual orientation. This Court has repeatedly recognized that Title VII claims are not defeated merely because “certain members of a protected class are not subject to discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 109 (2d Cir. 2010).
The long line of decisions recognizing so-called sex-plus cases illustrates this principle. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir. 2004) (explaining that the term “sex plus” is a heuristic affirming that sex discrimination claims are cognizable even “when not all members of a disfavored class are discriminated against”). Sexual orientation claims are, in effect, but another type of sex-plus claim and therefore equally cognizable under Title VII.
Second, this Court (and many others) has recognized that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). That interracial discrimination is discrimination because of race confirms that sexual orientation discrimination is discrimination because of sex.
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In Holcomb, for example, a white male plaintiff alleged that he had been discriminated against by his employer because he was married to a black woman. Id. at 132. The employer sought summary judgment on the basis that the plaintiff was not fired “because of [his] race,” as the adverse employment action was not animated by his status as a white person. This Court rightly rejected that argument and concluded the plaintiff was penalized by his class membership. “The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139. The Court reached this conclusion because such discrimination could only be understood by reference to the plaintiff’s race—a black employee married to another black person would not have been treated adversely in the way that the white employee married to a black person was. See Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) (“Plaintiff has alleged discrimination as a result of his marriage to a black woman. Had he been black, his marriage would not have been interracial. Therefore, inherent in his complaint is the assertion that he has suffered racial discrimination based on his own race.”).
A decision from the Sixth Circuit further illustrates the point. In Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., a white employee alleged he was discriminated against because he had fathered a biracial
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child. The Court concluded that such an allegation stated a claim of discrimination “because of race” under Title VII because “the alleged discrimination … was due to Tetro’s race being different from his daughter’s.” 173 F.3d 988, 994-995 (6th Cir. 1999). As the Court explained, “If [the employee] had been AfricanAmerican, presumably the dealership would not have discriminated because his daughter would also have been African-American.” Id.; see also Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”).5
These cases show instances of discrimination where, but for the plaintiff’s race, she or he would not have been discriminated against—and the claim therefore is cognizable under Title VII——regardless of the discriminator’s animus towards the plaintiff’s specific class in isolation. The same analysis should apply to claims of sex discrimination based on same-sex relationships or associations. See Hively, 853 F.3d at 349 (citing Price Waterhouse, 490 U.S. at 244 n.9). Judge Flaum’s concurrence in Hively makes the connection well:
5 The same analysis has long been used to invalidate anti-miscegenation laws under the Equal Protection Clause. See Loving v. Virginia, 388 U.S. 1, 11 (1967) (“There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race.”). Although Loving is a constitutional decision, it still provides a meaningful guide for understanding and interpreting anti-discrimination statutes. See Hively, 853 F.3d at 349 (citing Obergefell v. Hodges, 135 S. Ct. 2584 (2015)).
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Interracial relationships are comprised of (A) an individual of one race, and (B) another individual of a different race. Without considering the first individual’s race, the word ‘different’ is meaningless. Consequently, employment discrimination based on an employee’s interracial relationship is, in part, tied to an enumerated trait: the employee’s race … The same principle applies here. Ivy Tech allegedly refused to promote Professor Hively because she was homosexual—or (A) a woman who is (B) sexually attracted to women.
853 F.3d at 359. As Judge Flaum recognized, the long line of cases upholding
claims of discrimination based on interracial associations is fundamentally
incompatible with the rule of Simonton. Judges within the Second Circuit have
observed the same. See Christiansen, 852 F.3d at 204 (Katzmann, C.J.,
concurring); Boutillier, 221 F. Supp. 3d at 268 (“The logic is inescapable: [i]f
interracial association discrimination is held to be ‘because of the employee’s own
race,’ so ought sexual orientation discrimination be held to be because of the
employee’s own sex. Holcomb and Simonton are not legitimately
distinguishable.”); Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 365-
366 (E.D.N.Y. 2015) (applying reasoning of Holcomb to case of sexual orientation
discrimination).6
6 The Hively dissent mistakenly rejected this analogy to Title VII’s race-based precedent on the ground that, whereas anti-interracial rules “are inherently racist [because] [t]hey are premised on invidious ideas about white superiority, … [s]exual-orientation discrimination … is not inherently sexist.” Hively, 853 F.3d at 368. But, as the Hively majority correctly noted, Loving struck down the Virginia anti-miscegenation law because it “rest[ed] solely upon distinctions drawn according to race.” Loving, 388 U.S. at 11; id. at 11 n.11 (court “need not reach
- 26 -

CONCLUSION This Court should overrule Simonton and hold that discrimination on the basis of sexual orientation is actionable discrimination because of sex under Title VII.
Respectfully submitted,

/s/ Alan E. Schoenfeld

MARY BONAUTO

ALAN E. SCHOENFELD

GLBTQ LEGAL ADVOCATES & DEFENDERS WILMER CUTLER PICKERING

30 Winter Street, Suite 800

HALE AND DORR LLP

Boston, MA 02108

7 World Trade Center

(617) 426-1350

250 Greenwich Street

Counsel for Amicus Curiae GLAD

New York, NY 10007 (212) 937-7518

CHRISTOPHER STOLL NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 392-6257
Counsel for Amicus Curiae NCLR

DAVID M. LEHN WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania AVENUE NW Washington, DC 20006 (202) 663-6000
CHRISTOPHER D. DODGE WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 513-6000

June 26, 2017

Counsel for Amici Curiae GLAD and NCLR

this [white-supremacy] contention because we find the racial classifications in these statutes repugnant … even assuming an even-handed state purpose to protect the ‘integrity’ of all races”); see also Hively, 853 F.3d at 348 n.4. Holcomb confirms that the same principle obtains in the Title VII context. 521 F.3d at 139.
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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that,
1. This brief complies with the type-volume limitation of Second Circuit Local Rule 29.1(c) because it contains 6441 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman type style.

June 26, 2017

/s/ Alan E. Schoenfeld ALAN E. SCHOENFELD

CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing brief with the Clerk of the United States Court of Appeals for the Second Circuit via the CM/ECF system this 26th day of June, 2017, to be served on all counsel of record via ECF.
/s/ Alan E. Schoenfeld ALAN E. SCHOENFELD

 
 15-3775
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT
d MELISSA ZARDA, co-independent executor of the ESTATE OF DONALD ZARDA, WILLIAM ALLEN MOORE, JR., co-independent executor of the ESTATE OF DONALD ZARDA, Plaintiffs-Appellants, —against—
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, RAY MAYNARD, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF FOR AMICI CURIAE THE 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
THE LGBT BAR ASSOCIATION OF GREATER NEW YORK (LEGAL)
BY: MATTHEW SKINNER, EXECUTIVE DIRECTOR 601 West 26th Street, Suite 325-20 New York, New York 10001 (212) 353-9118 Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Pursuant to FED. R. APP. P. 26.1, amicus curiae The LGBT Bar Association of Greater New York (“LeGaL”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock. The Anti-Defamation League (“ADL”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock. The Asian American Bar Association of New York (“AABANY”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock. It is the New York affiliate of the National Asian Pacific American Bar Association. The Association of the Bar of the City of New York (a/k/a the New York City Bar Association), is a voluntary bar association with no parent corporation or subsidiaries, and no corporation or publicly held entity owns 10% or more of its stock. The New York City Bar Association has one affiliate, the Association of the Bar of the City of New York Fund, Inc. Bay Area Lawyers for Individual Freedom (“BALIF”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
i

The Hispanic National Bar Association (“HNBA”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
Legal Aid at Work (“LAAW”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
The National Queer Asian Pacific Islander Alliance (“NQAPIA”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
The New York County Lawyers Association (“NYCLA”) certifies that it has no parent corporation and no corporation or publicly held entity owns 10% or more of its stock.
The Women’s Bar Association of the State of New York (“WBASNY”) states that it is a statewide voluntary bar association incorporated in the State of New York, with no parent corporation, no corporation or publicly held entity owning 10% or more of its stock, and twenty-seven (28) subsidiaries and affiliates (consisting of one (1) direct subsidiary that is an IRC 501(c)(3) charitable foundation incorporated in New York; nineteen (19) affiliated regional chapters across New York, some of which are unincorporated and others of which are
ii

incorporated in New York; and eight (8) IRC 501(c)(3) charitable foundations or legal clinics that are subsidiaries of its chapters and incorporated in New York).1
1 WBASNY’s affiliates are: Chapters – Adirondack Women’s Bar Association; The Bronx Women’s Bar Association, Inc.; Brooklyn Women’s Bar Association, Inc.; Capital District Women’s Bar Association; Central New York Women’s Bar Association; Del-Chen-O Women’s Bar Association, Finger Lakes Women’s Bar Association; Greater Rochester Association for Women Attorneys; Mid-Hudson Women’s Bar Association; Mid-York Women’s Bar Association; Nassau County Women’s Bar Association; New York Women’s Bar Association; Queens County Women’s Bar Association; Rockland County Women’s Bar Association; Staten Island Women’s Bar Association; The Suffolk County Women’s Bar Association; Westchester Women’s Bar Association; Western New York Women’s Bar Association; and Women’s Bar Association of Orange and Sullivan Counties. Charitable Foundations & Legal Clinic – Women’s Bar Association of the State of New York Foundation, Inc.; Brooklyn Women’s Bar Foundation, Inc.; Capital District Women’s Bar Association Legal Project Inc.; Nassau County Women’s Bar Association Foundation, Inc.; New York Women’s Bar Association Foundation, Inc.; Queens County Women’s Bar Foundation; Westchester Women’s Bar Association Foundation, Inc.; and The Women’s Bar Association of Orange and Sullivan Counties Foundation, Inc.
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TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT .........................................................i TABLE OF CONTENTS.........................................................................................iv TABLE OF AUTHORITIES ....................................................................................v INTERESTS OF AMICI CURIAE ............................................................................1 ARGUMENT SUMMARY ......................................................................................1 ARGUMENT ............................................................................................................2 I. The Court Should Overturn Simonton Because It Relied on Outdated
Law, Resulting in a Decision That Conflicts with Supreme Court and Second Circuit Precedent................................................................................2 II. This Court Should Follow the Seventh Circuit’s Groundbreaking Precedent in Hively. ........................................................................................6 III. The Panel Decision’s Unworkable Approach Leaves LGB Employees Without Reassurance That They Are Protected from Illegal Discrimination Based on Their Sexual Orientation. ......................................8 CONCLUSION .......................................................................................................13 CERTIFICATE OF COMPLIANCE......................................................................14 CERTIFICATE OF SERVICE ...............................................................................15 ADDENDUM: INTERESTS OF AMICI CURIAE ...............................................16
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CASES

TABLE OF AUTHORITIES

Page(s)

Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2015)..................4, 9, 12
Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y. 2016) ..................................................................8
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ........................................................................passim
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................................8
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) ....................................................................3, 6, 7, 9
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) .............................................................................3, 4
Lawrence v. Texas, 539 U.S. 558 (2003)..............................................................................................5
Loving v. Virginia, 388 U.S. 1 (1967)..................................................................................................3
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..................................................................................5, 6, 7
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)..............................................................................................3
Philpott v. New York, No. 16 Civ. 6778 (AKH), 2017 U.S. Dist. LEXIS 67591 (S.D.N.Y. May 3, 2017)..................................................................................9, 10
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)..............................................................................................4
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) .................................................................................8

v

Romer v. Evans, 517 U.S. 620 (1996)..............................................................................................7
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ..........................................................................passim
U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Health Ctr., P.C., No. 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016) ...................................9
United States v. Windsor, 133 S. Ct. 2675 (2013)..........................................................................................5
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015) ................................................................9
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. May 30, 2017).........................................3
Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017) ...............................................................................1, 5
RULES Title VII of the Civil Rights Act of 1964..........................................................passim Fed. R. App. P. 26.1....................................................................................................i Fed. R. App. P. 29(d) ...............................................................................................14 Fed. R. App. P. 32(a)(5)...........................................................................................14 Fed. R. App. P. 32(a)(6)...........................................................................................14 Fed. R. App. P. 32(a)(7)(B) .....................................................................................14 Fed. R. App. P. 32(f)................................................................................................14
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OTHER AUTHORITIES Fourteenth Amendment .............................................................................................6 Brad Sears & Christy Mallory, Williams Inst., Evidence of
Employment Discrimination on the Basis of Sexual Orientation in State and Local Government: Complaints Filed with State Enforcement Agencies 2003-2007 (2011) ..........................................................11 Brad Sears et al., Williams Inst., Documenting Discrimination on the Basis of Sexual Orientation & Gender Identity in State Employment (2009).............................................................................................12 EEOC, LGBT-Based Sex Discrimination Charges (Charges filed with EEOC) FY 2013-FY 2016, https://www.eeoc.gov/eeoc/statistics/enforcement/lgbt_sex_based. cfm (last visited Apr. 19, 2017) ....................................................................11, 12 Jennifer C. Pizer et al., Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 Loy. L.A. L. Rev. 715 (2012) ........................11 Williams Inst., Annual Discrimination Complaints to State Agencies Prohibiting Sexual Orientation and/or Gender Identity (2008).........................12
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INTERESTS OF AMICI CURIAE Amici are a coalition of voluntary bar associations and nonprofit organizations united in their commitment to protecting the rights of LGBT individuals and the prevention of workplace discrimination and harassment of all forms. Detailed statements of interests are in the addendum following this brief.
ARGUMENT SUMMARY Discrimination on the basis of sexual orientation is discrimination on the basis of sex prohibited under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”). The panel in Zarda felt constrained by prior outdated decisions from this Circuit, stating it “lack[ed] the power to overturn Circuit precedent,” in rejecting Zarda’s request to find discrimination on the basis of sexual orientation is prohibited by Title VII. Zarda v. Altitude Express, 855 F.3d 76, 80 (2d Cir. 2017). Furthermore, the prior decisions on which the panel relied are in direct conflict with Supreme Court and Second Circuit case law. Consequently, the law as it stands in this Circuit is in disarray. Lesbian, gay, and bisexual (“LGB”) employees deserve clarity with respect to their rights in the workplace, and the time is now ripe for this Court to clarify those rights. For the following reasons, this Court should overturn its outdated precedent established in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2017), and find that Title VII protects
1

against discrimination on the basis of sexual orientation through its prohibition of discrimination “because of . . . sex.”
ARGUMENT I. The Court Should Overturn Simonton Because It Relied on
Outdated Law, Resulting in a Decision That Conflicts with Supreme Court and Second Circuit Precedent. Sexual orientation discrimination constitutes sex discrimination under Title VII in three distinct circumstances: (1) when LGB individuals are treated in a way that would be different “but for” their sex; (2) when LGB individuals are treated less favorably based on the sex of their associates; and (3) when LGB individuals are treated less favorably because they do not conform to gender stereotypes, particularly in romantic relationships. This Court has not had the opportunity to address these compelling theories, which developed after Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 203–06 (2d Cir. 2017) (Katzmann, C.J., concurring). Given the “evolving legal landscape” in the nearly two decades since Simonton was decided, a conflict with Supreme Court and more recent Second Circuit precedent now exists. Consequently, Simonton should be overturned. See id. at 202. First, Simonton was heavily informed by Congress’s refusal to expand Title VII protections and thus deserves revisiting. See 232 F.3d at 35. This Court reached the bare conclusion in Simonton that “Title VII does not prohibit harassment or discrimination because of sexual orientation.” Like other circuits,
2

the Second Circuit inferred Congress’s intent to exclude sexual orientation from Title VII from Congressional inaction. See id. However, the Supreme Court has stated that “[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (citation omitted) (internal quotation marks omitted); see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362, at *30 (7th Cir. May 30, 2017) (finding congressional inaction not determinative of expanding Title IX protections); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 344 (7th Cir. 2017) (finding congressional inaction not determinative of expanding Title VII protections for discrimination based on sexual orientation). Accordingly, the reasoning on which Simonton relied is irreconcilable with Supreme Court precedent. Therefore, this panel’s reliance on Simonton merits reversal.
Second, overturning Simonton is warranted in light of the recognition of associational discrimination. The theory of associational discrimination has long been accepted, see, e.g., Loving v. Virginia, 388 U.S. 1, 7–8 (1967), and was adopted by this Circuit in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008). Although Loving and Holcomb only addressed race-based associations, the theory of associational discrimination applies “with equal force” to discrimination based
3

on sex because each enumerated category under Title VII is treated “exactly the same . . . .” See Price Waterhouse v. Hopkins, 490 U.S. 228, 243, n.9 (1989). Thus, an employee who alleges that “his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex” alleges sex discrimination under Title VII. Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *6 (July 15, 2015). Because Simonton predates Holcomb, this Court has not yet addressed how associational discrimination intersects with discrimination on the basis of same-sex associations. This conflict in Second Circuit case law necessitates a fresh examination of the legal framework in Simonton; in doing so, this Court must overrule Simonton and find that associational discrimination includes discrimination on the basis of sex.
Third, the Court should use the opportunity presented here to address the modern approach—that sexual orientation discrimination is a type of genderstereotyping under Title VII. Simonton created a “binary distinction . . . between permissible gender stereotype discrimination claims and impermissible sexual orientation discrimination.” Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring). This unworkable distinction has persisted, complicating pleadings and disregarding the strong overlap between gender stereotypes and sexual orientation discrimination. The Simonton approach ignores the reality that sexual orientation discrimination is based on gender stereotypes and thus should be
4

actionable under Title VII. See id. at 205-06 (“fundamentally, carving out gender stereotypes related to sexual orientation ignores the fact that negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women . . . as clear a gender stereotype as any.”) The history of Zarda’s case demonstrates the resulting burden on LGB plaintiffs. As the panel acknowledged, the District Court limited its analysis of sex stereotyping to “what you may wear or how you may behave,” yet failed to analyze “whether Zarda could rely on a ‘sex stereotype’ that men should date women.” Zarda, 855 F.3d at 81. In so doing, the District Court furthered, and the panel upheld, the needlessly complicated and increasingly unworkable distinction between discrimination based on gender stereotypes and sexual orientation. Accordingly, this Court should overrule Simonton and acknowledge the “gender stereotype at play in sexual orientation discrimination.” Christiansen, 852 F.3d at 206 (Katzmann, C.J., concurring).
The legal landscape surrounding LGB rights has overwhelmingly changed since Simonton. Simonton predates the Supreme Court’s decisions in Lawrence v. Texas, 539 U.S. 558, 578 (2003) (finding unconstitutional Texas’s criminalization of same-sex intimacy), United States v. Windsor, 133 S. Ct. 2675, 2679 (2013) (finding unconstitutional DOMA’s definition of marriage as between a man and woman), and Obergefell v. Hodges, 135 S. Ct. 2584, 2607–08 (2015) (holding that
5

same-sex couples have a fundamental right to marry, as protected under the Fourteenth Amendment). This Court should overrule the outdated, unworkable Simonton decision to address more recent legal developments. As reasoned in Obergefell, “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” 135 S. Ct. at 2602.
The panel’s decision and its reliance on Simonton conflicts with Supreme Court and Second Circuit precedent. In light of this and the changing legal landscape surrounding LGB issues, the Second Circuit should overrule Simonton and find discrimination on the basis of sexual orientation is discrimination prohibited under Title VII “because of … sex”. II. This Court Should Follow the Seventh’s Circuit’s
Groundbreaking Precedent in Hively. Two weeks before the panel’s decision in this case, the Seventh Circuit published its groundbreaking decision in Hively, where it held for the first time that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. See Hively, 853 F.3d at 341. Hively is now in direct conflict with the decision of this panel. Accordingly, this Court should overrule Simonton, and follow the persuasive precedent set by the Seventh Circuit in Hively. In Hively, the Seventh Circuit held that a plaintiff who alleges discrimination on the basis of sexual orientation can put forth a valid claim of sex discrimination
6

under Title VII. See id. In finding that discrimination on the basis of sexual orientation constitutes a form of sex discrimination covered by Title VII, the Seventh Circuit stressed that it was not “amending” Title VII to add a new protected category, but was rather interpreting “what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.” Id. at 343. Ultimately, the Seventh Circuit was convinced that Title VII encompasses sexual orientation discrimination under two alternative theories: (1) the “comparative method,” where courts attempt to isolate the significance of a plaintiff’s sex in an employer’s decision; and (2) the associational discrimination theory. See id. at 345.2
The Seventh Circuit’s en banc decision in Hively unequivocally overruled prior Seventh Circuit precedent. Like the panel here, the panel in Hively also felt constrained by prior outdated precedent. But the Seventh Circuit “recognize[ed] the power of the full court to overrule earlier decisions and to bring [its] law into conformity with the Supreme Court’s teachings.” Id. at 343. This Court now should do the same.
2 The majority in Hively traced its decision against a backdrop of Supreme Court cases beginning with Romer v. Evans, 517 U.S. 620 (1996) to the most recent opinion in Obergefell, recognizing the evolving sense that laws that discriminate on the basis of sexual orientation violate the Equal Protection Clause. Id. at *19.
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III. The Panel Decision’s Unworkable Approach Leaves LGB Employees Without Clear Protection from Illegal Discrimination Based on Their Sexual Orientation. In continuing to draw a line between sexual orientation and sex-based
discrimination claims, the panel has furthered a fallacious distinction. The law as it currently stands requires district courts to determine whether an allegation is based on gender stereotyping or stereotyping based on sexual orientation. However, numerous courts throughout the country have grappled with this distinction and found it unworkable. See Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 620 (S.D.N.Y. 2016) (“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims.”); see also, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (“[T]he line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw.”); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (finding it “often difficult to discern” between allegations based on sexual orientation discrimination and those based on sex stereotyping, because “the borders [between these classes] are so imprecise”).
The confusion among courts surrounding this artificial line-drawing led the Equal Employment Opportunity Commission (“EEOC”) to throw out the distinction altogether. The EEOC’s official position is now that “an allegation of
8

discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Baldwin, 2015 WL 4397641, at *5. The EEOC reached this conclusion because, among other reasons, discrimination on the basis of sexual orientation inevitably involves stereotypes about the proper gender roles in romantic relationships—namely, that men should only date women and vice versa.
Since Baldwin, numerous courts have gone beyond merely lamenting this distinction as unworkable, and have now coalesced to condemn the distinction as an artificial judicial construct with no basis in reality. See, e.g., Hively, 853 F.3d at 346 (concluding that the line between sexual orientation discrimination and sexstereotyping claims “does not exist at all”); Philpott v. New York, No. 16 Civ. 6778 (AKH), 2017 U.S. Dist. LEXIS 67591, at *6-7 (S.D.N.Y. May 3, 2017) (following Hively and “declin[ing] to embrace an illogical and artificial distinction” between sexual orientation discrimination and gender stereotyping) (internal quotation omitted); U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Health Ctr., P.C., No. 16-225, 2016 WL 6569233, at *6 (W.D. Pa. Nov. 4, 2016) (describing the distinction between sexual orientation discrimination and sex stereotyping as “a distinction without a difference” and concluding that no line separates the two); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (“[T]he Court concludes that the distinction is illusory and artificial, and that
9

sexual orientation discrimination is not a category distinct from sex or gender discrimination.”). Indeed, courts have even rejected the distinction between sexual orientation discrimination and sex stereotyping as immaterial and proceeded to find claims of sexual orientation discrimination “cognizable under Title VII.” Philpott, 2017 U.S. Dist. LEXIS 67591, at *7.
Under the current framework, LGB employees who face illegal discrimination in the workplace can only seek protections under Title VII if they assert a gender stereotyping claim. This result permits (and perhaps even encourages) employers to claim that they did not discriminate against an employee because of gender stereotypes, but rather, simply because of the employee’s sexual orientation. Not only is this illogical, but as the Christiansen panel acknowledged in addressing the same issue, it has become “especially difficult for gay plaintiffs to bring” gender stereotyping claims. Christiansen, 852 F.3d at 200 (citation omitted).
Title VII protections should extend to all LGB employees, not just a subset who survive scrutiny within a false judicial construct. The law, as it currently stands, leaves LGB employees uniquely vulnerable to illegal employment discrimination, without the reassurance that Title VII protects them from such evils. Indeed, the Williams Institute at the UCLA School of Law has gathered studies demonstrating the impact of sexual orientation discrimination on LGBT
10

employees. See Jennifer C. Pizer et al., Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 Loy. L.A. L. Rev. 715 (2012) (hereinafter “Persistent Discrimination”). A 2008 national survey reported that 42% of LGB workers experienced some form of workplace discrimination or harassment related to their sexual orientation. See Persistent Discrimination at 722–23. A more recent 2011 study revealed that on a national level, the population-adjusted rate for sexual orientation-based discrimination complaints matches that of race-based discrimination claims at four claims per 10,000 workers, and is just short of the adjusted rate for sex-based discrimination complaints at five claims per 10,000 workers. See Brad Sears & Christy Mallory, Williams Inst., Evidence of Employment Discrimination on the Basis of Sexual Orientation in State and Local Government: Complaints Filed with State Enforcement Agencies 2003-2007 2 (2011).
Given the community’s vulnerability to discrimination, it is not surprising that the EEOC has reported a general upward trend in the number of sexual orientation-based discrimination complaints filed since the agency began tracking such information, including an increase from fiscal year 2015 (when Baldwin was issued) to fiscal year 2016. See EEOC, LGBT-Based Sex Discrimination Charges
11

(Charges filed with EEOC) FY 2013-FY 2016, https://www.eeoc.gov/eeoc/ statistics/enforcement/lgbt_sex_based.cfm (last visited Apr. 19, 2017). Similarly, a 2008 study reported an upward trend in the number of sexual orientation discrimination claims filed between 1999 and 2007 with the appropriate state agencies in Connecticut and New York. See Williams Inst., Annual Discrimination Complaints to State Agencies Prohibiting Sexual Orientation and/or Gender Identity 2, 5 (2008). Corroborating this study’s finding, the New York State Division of Human Rights reported a similar increase of discrimination complaints on the basis of sexual orientation filed from 2003 to 2007. See Brad Sears et al., Williams Inst., Documenting Discrimination on the Basis of Sexual Orientation & Gender Identity in State Employment 15-67–15-68 (2009).
These studies highlight the dilemma faced by LGB employees, who seek to rely on anti-discrimination laws at roughly equivalent ratios to minority or female workers, but who find that protections for the LGB community are less likely to be enforced to the fullest extent of the law. The history of this case exemplifies the struggle these LGB employees face under the current law. Further, the documented increasing rate at which these claims are being brought, particularly after Baldwin, will inevitably compound the confusion district courts face.
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LGB employees, their employers, and their respective attorneys all need clarity with respect to this area of law. This Court needs to settle this uncertainty and should retire the unworkable distinction between permissible gender stereotype discrimination claims and impermissible sexual orientation discrimination claims to hold that discrimination based on sexual orientation is, in fact, sex discrimination under Title VII.
CONCLUSION This Court should overturn Simonton and hold that discrimination on the basis of sexual orientation is discrimination on the basis of sex, as prohibited under Title VII.
The LGBT Bar Association of Greater New York (LeGaL) 601 West 26th Street, Suite 325-20 New York, NY 10001 (212) 353-9118
By: Matthew Skinner
Executive Director Amicus Curiae
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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because it contains 3,942 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word in Times New Roman 14-point font. Dated: June 26, 2017
The LGBT Bar Association of Greater New York (LeGaL) 601 West 26th Street, Suite 325-20 New York, NY 10001 (212) 353-9118 mskinner@le-gal.org
By: Matthew Skinner
Executive Director Amicus Curiae
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CERTIFICATE OF SERVICE I hereby certify that on June 26, 2017 I electronically filed the foregoing brief with the Clerk of Court for the United States Court of Appeals for the Second Circuit by using the Court’s CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
The LGBT Bar Association of Greater New York (LeGaL) 601 West 26th Street, Suite 325-20 New York, NY 10001 (212) 353-9118 mskinner@le-gal.org
By: Matthew Skinner
Executive Director Amicus Curiae
15

ADDENDUM: INTERESTS OF AMICI CURIAE The LGBT Bar Association of Greater New York (“LeGaL”) was one of the nation’s first bar associations of the LGBT legal community and remains one of the largest and most active organizations of its kind in the country. Serving the New York metropolitan area, LeGaL is dedicated to improving the administration of the law, ensuring full equality for members of the LGBT community, and promoting the expertise and advancement of LGBT legal professionals. LeGaL, whose membership includes attorneys that regularly represent LGBT employees in cases of employment discrimination, has a fundamental interest in ensuring that Title VII’s protections extend to all LGBT employees. The Anti-Defamation League (“ADL”) was founded in 1913 to combat anti-Semitism and other forms of prejudice, and to secure justice and fair treatment to all. Today, ADL is one of the nation’s leading civil rights organizations. As part of its commitment to protecting the civil rights of all persons, ADL has filed amicus briefs in numerous cases addressing the unconstitutionality or illegality of discriminatory practices or laws. ADL worked closely with coalition partners to help pass the Civil Rights of Act of 1964, and it maintains a strong interest in ensuring that its provisions, such as Title VII, are interpreted in accordance with the law’s intent to protect people in historically persecuted groups, like Donald Zarda, from discrimination.
16

The Asian American Bar Association of New York (“AABANY”) was formed in 1989 as a not-for-profit corporation to represent the interests of New York Asian American attorneys, judges, law professors, legal professionals, legal assistants, paralegals and law students. The mission of AABANY is to improve the study and practice of law, and the fair administration of justice for all by ensuring the meaningful participation of Asian Americans in the legal profession. AABANY, currently with over 1000 active members, is the New York affiliate of the National Asian Pacific American Bar Association.
The Association of the Bar of the City of New York (a/k/a the New York City Bar Association or the “City Bar”) is a voluntary association of over 24,000 member lawyers and law students. Among other initiatives, the City Bar addresses unmet legal needs, especially the needs of traditionally disadvantaged groups and individuals such as those in the LGBT community. The Committee on LGBT Rights addresses legal and policy issues that affect LGBT individuals.
Bay Area Lawyers for Individual Freedom (“BALIF”) is a bar association of approximately 500 lesbian, gay, bisexual, and transgender (“LGBT”) members in the San Francisco Bay Area legal community. BALIF promotes the professional interests and social justice goals of its members and the legal interests of the LGBT community at large. For nearly 40 years, BALIF has actively participated in public
17

policy debates concerning the rights of LGBT people and has authored and joined amicus efforts concerning matters of broad public importance.
The membership of amicus curiae the Hispanic National Bar Association (the “HNBA”) comprises thousands of Latino lawyers, law professors, law students, legal professionals, state and federal judges, legislators, and bar affiliates across the country. The HNBA supports Hispanic legal professionals and is committed to advocacy on issues of importance to the 53 million people of Hispanic heritage living in the United States. The HNBA regularly participates as amicus in cases concerning civil rights.
Legal Aid at Work (“LAAW”) (formerly Legal Aid Society – Employment Law Center) is a non-profit public interest law organization whose mission is to protect, preserve, and advance the employment and education rights of individuals from traditionally under-represented communities. LAAW has represented plaintiffs in cases of special import to communities of color, women and girls, recent immigrants, individuals with disabilities, the LGBT community, and the working poor. LAAW has litigated a number of cases under Title IX of the Education Amendments of 1972 as well as Title VII of the Civil Rights Act of 1964. LAAW has appeared in discrimination cases on numerous occasions both as counsel for plaintiffs, see, e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002); U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002); and
18

California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987) (counsel for real party in interest), as well as in an amicus curiae capacity. See, e.g., U.S. v. Virginia, 518 U.S. 515 (1996); Harris v. Forklift Systems, 510 U.S. 17 (1993); International Union, UAW v. Johnson Controls, 499 U.S. 187 (1991); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). LAAW’s interest in preserving the protections afforded to employees and students by this country’s antidiscrimination laws is longstanding.
The National Queer Asian Pacific Islander Alliance (“NQAPIA”) is a federation of lesbian, gay, bisexual, and transgender (LGBT) Asian American, South Asian, Southeast Asian, and Pacific Islander (APIs) organizations. NQAPIA builds the capacity of local LGBT API groups, develops leadership, promotes visibility, educates the community, invigorates grassroots organizing, encourages collaborations, and challenges anti-LGBT bias and racism. NQAPIA as long supported the expansion of rights to protect LGBT people from discrimination.
The New York County Lawyers Association (“NYCLA”) Committee on Lesbian, Gay, Bisexual and Transgender Issues is a committee of NYCLA—a notfor-profit membership organization of approximately 8,000 members committed to applying their knowledge and experience in the field of law to promotion of the public good and ensuring access to justice for all. Founded in 1908, NYCLA was the first major bar association in the country to admit members without regard to
19

race, ethnicity, religion or gender, and continues to pioneer tangible reforms in American jurisprudence. This amicus brief has been approved by the NYLCA Committee on Lesbian, Gay, Bisexual and Transgender Issues and has not been reviewed by the NYCLA Executive Committee.
The Women’s Bar Association of the State of New York (“WBASNY”) is the second largest statewide bar association in New York, with more 4,400 members in nineteen regional chapters. WBASNY’s membership includes jurists, academics, and practicing attorneys in every area of the law, including constitutional and civil rights, employment law, family and matrimonial law, and children’s rights.3 WBASNY’s primary mission is to ensure the advancement of equal rights and the fair administration of justice for all persons. It has been a vanguard for the rights of women, children, and LGBT persons for decades, and it has participated as an amicus in many cases supporting equal rights for all persons, regardless of gender or sexual orientation, including before the Second Circuit and U.S. Supreme Court in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d sub nom. United States v. Windsor, 133 S. Ct. 2675 (2013).
3 The Boards of Directors of WBASNY and its 19 affiliated chapters include attorneys who are judges, court attorneys, or otherwise affiliated with courts in New York. No WBASNY members who are judges or court personnel participated in WBASNY’s vote to join in this matter as amicus or in the drafting or review of this brief.
20

 
 15-3775

dIN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, —against—
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, RAY MAYNARD, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, HON. JOSEPH BIANCO, JUDGE
BRIEF OF THE LEGAL AID SOCIETY AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS

FREDERICK H. REIN MICHAEL B. COTTLER AMANDA B. PROTESS CHRISTOPHER J. MORTEN TIFFANY MAHMOOD GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 (212) 813-8800

NICOLE S. TATE-NAGHI GOODWIN PROCTER LLP 135 Commonwealth Drive Menlo Park, California 94025 (650) 752-3100
JONATHAN J. WHITNEY GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 (617) 570-1000

RICHARD BLUM HEIDI CAIN THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 (212) 577-3300

Attorneys for Amicus Curiae The Legal Aid Society

TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT ........................................................ix
STATEMENT OF INTEREST..................................................................................1
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................4
I. Under Title VII, Discrimination Based On Sexual Orientation Cannot Be Carved Out From Discrimination Based On Failing To Conform To Gender Stereotypes. ....................................................4
A. Courts And Other Arbiters Increasingly Recognize That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping, And Is Therefore Protected By Title VII. ............6
B. Second Circuit Precedent Has Created An Untenable Framework For Evaluating Claims Of Employment Discrimination Based On Sexual Orientation Distinct From Gender Stereotyping........................................................10
C. Childhood Bullying And Other Real World Evidence Demonstrate That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping. ...............................................15
II. Interpreting Title VII To Protect Against Sexual Orientation Discrimination Would Further Title VII’s Legislative Purpose And Combat The Economic And Other Harms Suffered By LGB People. ........................................................................................22
A. Title VII Was Intended To Protect Certain Groups From The Harmful Economic Effects That Flow From Employment Discrimination.....................................................22
B. Sexual Orientation Discrimination Negatively Affects LGB Employment Opportunities And Overall Well Being. ........................................................................................24
i

C. Sexual Orientation Discrimination Exacerbates Poverty. ........29 CONCLUSION ........................................................................................................31 CERTIFICATE OF COMPLIANCE.......................................................................34
ii

TABLE OF AUTHORITIES
Page(s)
Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)............................................................................................23
Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) .....................................................................................................................9
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016)...............................................................7, 9
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)...............................................................7, 9
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ........................................................................passim
Couch v. Chu, E.E.O.C. Appeal No. 0120131136, 2013 WL 4499198 (Aug. 13, 2013) ...................................................................................................................11
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................3, 5, 12, 13
Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997) ..............................................................................11
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) ....................................................................13, 14
Griggs v. Duke Power Co., 401 U.S. 424 (1971)............................................................................................23
Henderson v. Labor Finders of Va., Inc., No. 3:12-cv-600, 2013 WL 1352158 (E.D. Va. Apr. 2, 2013)...........................11
iii

Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) ..........................................................................8, 12
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015).....................................................9
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) ..............................................................................11
Philpott v. New York, No. 16-cv-6778 (AKH), 2017 WL 1750398 (S.D.N.Y. May 3, 2017) ...................................................................................................................10
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)....................................................................................5, 6, 13
Romer v. Evans, 517 U.S. 620 (1996)............................................................................................29
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .........................................................................3, 5, 11
U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016)...................................................................9
Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984) ..............................................................................8
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015) ..............................................................10
Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334 (N.D. Fla. 2016) ................................................................9
Statutes 42 U.S.C. § 2000e-2(a)(1)..........................................................................................4
42 U.S.C. § 2000e et seq. (July 2, 1964) .................................................................23
iv

Rules and Regulations 29 C.F.R. § 1608.1 ...................................................................................................24
FED. R. APP. P. 26.1................................................................................................ viii
FED. R. APP. P. 29(a)(4)(E) ........................................................................................1
FED. R. APP. P. 29(a)(5) ...........................................................................................34
FED. R. APP. P. 29(a)(8) .............................................................................................2
FED. R. APP. P. 29(b)(2) .............................................................................................2
FED. R. APP. P. 29(c)(1) ......................................................................................... viii
FED. R. APP. P. 32(a)(5) ...........................................................................................34
FED. R. APP. P. 32(a)(6) ...........................................................................................34
FED. R. APP. P. 32(a)(7)(B) ......................................................................................34
Other Authorities Andras Tilcsik, Pride and Prejudice: Employment Discrimination
Against Openly Gay Men in the United States, 117 Am. J. of Soc. 586 (2011).....................................................................................................24, 25
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994) ...............................15
Angela Irvine, “We’ve Had Three of Them”: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System, 19 Colum. J. of Gender & L. 675 (2010)...........................................................................................................18
Anthony E. Varona et al., En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67 (2000).........................20
Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715 (2014).....................................................................13
v

Christy Mallory et al., The Economic Impact of Stigma and Discrimination Against LGBT People in Georgia, The Williams Institute (2017), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Economic-Impact-of-Discrimination-and-Stigmaagainst-LGBT-People-in-Georgia-FINAL-4.pdf (last visited June 25, 2017) .............................................................................................................31
Deena Fidas et al., The Cost of the Closet and the Rewards of Inclusion, Human Rights Campaign (May 2014), available at https://tinyurl.com/yb8wnsk5 (last visited June 25, 2017)...........................27, 28
Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. Rev. 471 (2001) ....................................15
Elizabethe Payne et al., LGBTQ Kids, School Safety, and Missing the Big Picture: How the Dominant Bullying Discourse Prevents School Professionals from Thinking about Systemic Marginalization or . . . Why We Need to Rethink LGBTQ Bullying, 1 QED: A J. in GLBTQ Worldmaking 1 (2013) ....................................17, 18, 20
Emir Ozeren, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 109 Procedia Soc. & Behav. Sci. 1203 (2014).........................................................................................................31
Growing Up LGBT in America, Human Rights Campaign, at 16, available at http://www.hrc.org/youth-report (last visited June 23, 2017) ...................................................................................................................18
H.R. Rep No. 88-914, pt. 1 (1963) ...........................................................................23
H.R. Rep No. 88-914, pt. 2 (1963) ...........................................................................23
HRC Staff, Coming of Age: Creators of Golden Globe Winner “Moonlight” Discuss Bullying, Masculinity, Human Rights Campaign (Jan. 9, 2017), available at https://tinyurl.com/y7dmvc46 (last visited June 25, 2017) ................................20
Jamie H. Douglas et al., The Sexual Orientation Wage Gap for Racial Minorities, 54 Indus. Relations 59 (2015) ..........................................................26
vi

Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, Bloomberg (July 20, 2016), available at https://tinyurl.com/jzdaptl (last visited June 25, 2017) ......................................29
Katherine M. Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1 (1995) ....................15
Ken Corbett, Faggot=Loser, 2 Studies in Gender and Sexuality 3 (2001) ..................................................................................................................21
M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute (June 2013), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGB-Poverty-Update-Jun-2013.pdf (last visited June 25, 2017).....................................................................................................30
Major Velma Cheri Gay, 50 Years Later … Still Interpreting the Meaning of “Because of Sex” Within Title VII and Whether It Prohibits Sexual Orientation Discrimination, 73 A. F. L. Rev. 61 (2015) ..................................................................................................................21
Melissa J. Smith et al., Binaries and Biology: Conversations with Elementary Education Professionals After Professional Development on Supporting Transgender Students, 80 The Educ. F. 34 (2016).........................................................................................................16
Melissa J. Smith et al., Educator Evaluations of School Climate for LGBTQ Students: A Reiteration of the Bullying Discourse in 5 LGBTQ Voices in Education: Change the Culture of Schooling 73 (2015) ..................................................................................................................19
Michael King et al., A Systemic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People, 8 BMC Psychiatry 70 (Aug. 18, 2008), available at https://tinyurl.com/y82ylc8b (last visited June 25, 2017) ..................................27
Michael S. Kimmel, Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity, 33 Readings For Diversity and Social Justice (2001) ....................................................................21
vii

Nancy Levit, Theorizing and Litigating the Rights of Sexual Minorities, 19 Colum. J. Gender & L. 21 (2010) ...............................................12
Rob Smith, Opinion: The Bearable Whiteness of Being Gay, InAmerica CNN Blogs (Feb. 2, 2012), available at https://tinyurl.com/6nyus6k (last visited June 25, 2017)....................................30
Sejal Singh et al., Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways, Center for American Progress (May 2, 2017), available at https://tinyurl.com/ybxbzttt (last visited June 25, 2017). .................25, 26, 28, 29
Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988) ............................................................................15
Taylor N.T. Brown et al., Food Insecurity and SNAP Participation in the LGBT Community, The Williams Institute (July 2016), available at http://williamsinstitute.law.ucla.edu/research/healthand-hiv-aids/lgbt-people-are-disproportionately-food-insecure/ (last visited June 25, 2017) .................................................................................30
Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465 (2004)................................................20
viii

CORPORATE DISCLOSURE STATEMENT Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate Procedure, amicus curiae The Legal Aid Society states that it has no parent corporation and that no publicly held company owns 10% or more of its stock.
ix

STATEMENT OF INTEREST1 The Legal Aid Society (“Legal Aid”) is the nation’s oldest and largest private not-for-profit organization, providing free legal services to low-income individuals and families for over 140 years. Its more than 1,100 attorneys represent clients throughout New York City in over 300,000 matters annually. Accordingly, Legal Aid is uniquely positioned to provide guidance to the Court on economic issues affecting the marginalized. Additionally, in 2011, Legal Aid started its LGBT Law and Policy Initiative to combat poverty and homelessness among lesbian, gay, bisexual (“LGB”), and transgender people. Through that initiative, along with its Juvenile Rights Practice, which, inter alia, represents children in the majority of New York City abuse and neglect proceedings, as well as its Civil/Employment Law Unit, Legal Aid assists and represents individuals who have experienced discrimination based on their sexual orientation. Across its legal practices, Legal Aid has represented members of the LGB (or “gay”) community in thousands of cases and has served as counsel, or appeared as amicus, in cases pertaining to gender and sexuality.
1 No party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money intended to fund preparing or submitting this brief; and no person other than amicus curiae, its members, or its counsel, contributed money intended to fund preparing or submitting this brief. See FED. R. APP. P. 29(a)(4)(E).
1

Legal Aid has seen first-hand the impact that sexual orientation discrimination has on low-income workers, including gay people.
Amicus thus brings critical perspective and decades of experience to bear on the question whether Title VII provides protection to individuals who experience sexual orientation discrimination. Should the Court believe it would benefit from oral argument by amicus, Legal Aid would be happy to oblige.2 This Court granted leave for filing amici curiae briefs in its May 25, 2017 order3; additionally, Appellants have consented to the filing of this brief, and Appellees have stated that they will not submit any opposition.4
2 See FED. R. APP. P. 29(a)(8). 3 Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017), ECF No. 271. 4 See FED. R. APP. P. 29(b)(2).
2

SUMMARY OF ARGUMENT This Court should overrule Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), and hold that discrimination in the workplace on the basis of sexual orientation is illegal under Title VII of the Civil Rights Act of 1964. 1. It is well established, by the Supreme Court and this Court, that gender stereotyping discrimination is a form of discrimination on the basis of sex, and thus within Title VII’s ambit. However, current precedent, articulated in Simonton and Dawson, carves out sexual orientation discrimination from the meaning of gender stereotyping, resulting in protection of LGB individuals if they are gender nonconforming (e.g., effeminate gay men), but not if they are gender conforming (e.g., masculine gay men). This distinction is simply untenable. An increasing number of judges, as well as the Equal Employment Opportunity Commission (“EEOC”), now interpret Title VII as protecting all, rather than some, LGB individuals. This interpretation is based on the recognition that sexual orientation discrimination is a form of gender stereotyping, which is already prohibited. Moreover, as set forth below, social science and legal scholarship demonstrate that homophobia is invariably rooted in and driven by gender stereotyping and gender policing that begins in childhood.
3

2. Title VII was intended to protect marginalized groups from economic injuries caused by employment discrimination. This brief presents research demonstrating that LGB individuals are discriminated against because of their sexual orientation, and that such individuals therefore suffer lower rates of employment, lower wages, and higher rates of poverty compared to the public at large. Put simply, sexual orientation discrimination has caused widespread and profound economic harm. Therefore, interpreting Title VII to protect against sexual orientation discrimination furthers Title VII’s very purpose.
The Court now has a historic opportunity to overrule bad precedent and hold that Title VII protects all, not some, LGB individuals who are discriminated against in the workplace based on their sexual orientation.
ARGUMENT I. UNDER TITLE VII, DISCRIMINATION BASED ON SEXUAL ORIENTATION
CANNOT BE CARVED OUT FROM DISCRIMINATION BASED ON FAILING TO CONFORM TO GENDER STEREOTYPES. As set forth in Title VII, it is an “unlawful employment practice for an employer . . . to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.”5 This Court’s jurisprudence has employed a
5 42 U.S.C. § 2000e-2(a)(1).
4

strained reading of “sex” such that gender stereotyping is prohibited,6 but sexual orientation discrimination is not.7 Consequently, within the Second Circuit, all straight people—and some gay people—who appear to transgress superficial gender norms, are protected under Title VII, while other gay people are not. As the Supreme Court observed in Price Waterhouse, however, courts “need not leave [their] common sense at the doorstep when” interpreting Title VII.8 And common sense dictates that sexual orientation discrimination is rooted in the very gender stereotyping that Title VII prohibits.
There is no principled basis for distinguishing between discrimination based on sexual orientation and discrimination based on failure to conform to gender stereotypes, given that both rely on traditional notions of acceptable behavior for men and women. Increasingly, courts confronting the issue have recognized that this is the case. By contrast, this Court’s jurisprudence in Simonton and Dawson demonstrates that attempts to isolate sexual orientation from other forms of gender stereotyping simply defy logic. Further, sociological data support the notion that sexual orientation discrimination is a form of gender stereotyping discrimination.
6 See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 199-200 (2d Cir. 2017) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 231-33 (1989)). 7 See Dawson, 398 F.3d at 217-22; Simonton, 232 F.3d at 35. 8 490 U.S. at 241.
5

Accordingly, the time has come to remedy the strained reading of “sex” in Title VII by recognizing that Title VII-cognizable sex discrimination based on gender stereotyping includes discrimination based on sexual orientation.
A. Courts And Other Arbiters Increasingly Recognize That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping, And Is Therefore Protected By Title VII.
Federal judges and adjudicators at the administrative, district court, and appellate levels have increasingly concluded that employers that consider an employee’s sexual orientation in making selection, evaluation, or compensation decisions unlawfully “rel[y] upon sex-based considerations in coming to [their] decision[s].”9
In his concurrence in Christiansen, Chief Judge Katzmann, joined by Judge Brodie, identified at least three reasons why discrimination on the basis of an individual’s sexual orientation is part and parcel of the kind of sex-based discrimination that violates Title VII, including that “gay, lesbian, and bisexual individuals are treated less favorably because they do not conform to gender stereotypes, particularly stereotypes about the proper roles of men and women in romantic relationships.”10
9 Price Waterhouse, 490 U.S. at 242. 10 852 F.3d at 202 (Katzmann, C.J., concurring).
6

While Legal Aid believes each of Chief Judge Katzmann’s rationales justifies the conclusion that sexual orientation is sex-based discrimination, this brief focuses on the above-quoted rationale, particularly because the work of legal theorists and practitioners on LGB issues, including Legal Aid, reinforces the point.11 That is, discriminators do not differentiate between notions of how a “man” should act and how a “straight” man should act. Instead, sexual orientation discrimination “is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”12
As observed in the Christiansen per curiam, “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.”13 Accordingly, to the extent that, as the concurrence acknowledged, “homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus,”14 it is clear
11 See Section I.C, infra. 12 Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring) (quoting Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002)). 13 Id. at 200-01. 14 Id. at 205 (Katzmann, C.J., concurring) (quoting Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016)).
7

there is no defensible distinction between sexual orientation discrimination and other discrimination based on gender stereotyping.
When recently confronted with the question now before this Court, the Seventh Court overturned three decades of contrary authority and held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”15 As in the Christiansen concurrence, one of the Seventh Circuit’s reasons for so holding was that there is no difference between sexual orientation discrimination and other gender stereotyping.16 The Court recognized that the plaintiff-appellant, “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”17 Accordingly, while a panel of the Seventh Circuit characterized “the line between a gender nonconformity claim and one based on sexual orientation as gossamer thin,” the Court, sitting en banc, concluded “that it does not exist at all.”18
15 Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017) (en banc). The earliest case that Hively abrogated, Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984), informed this Court’s outmoded decision in Simonton. 16 Hively, 853 F.3d at 346. 17 Id. 18 Id.
8

Furthermore, the EEOC also ruled that sexual orientation discrimination is protected under Title VII.19 Like the subsequent Hively decision and Christiansen concurrence, it agreed that “[s]exual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.”20 It noted that such “discrimination and harassment ‘[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms.’”21
Finally, a number of district courts, faced with interpreting “sex” under Title VII, have come out the same way as the Christiansen concurrence, the Seventh Circuit, and the EEOC and agreed that sexual orientation discrimination cannot be distinguished from gender stereotyping.22
As one judge in the Southern District of New York explained, whether a “plaintiff has framed his complaint in terms of sexual orientation discrimination
19 Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 15, 2015). 20 Id. at *7. 21 Id. at *8 (quoting Centola, 183 F. Supp. 2d at 410). 22 See, e.g., Boutillier, 221 F. Supp. 3d at 270; U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834, 841-42 (W.D. Pa. 2016); Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334, 1346-47 (N.D. Fla. 2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015); Centola, 183 F. Supp. 2d at 410.
9

and not gender stereotyping discrimination is immaterial” given the “‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”23
B. Second Circuit Precedent Has Created An Untenable Framework For Evaluating Claims Of Employment Discrimination Based On Sexual Orientation Distinct From Gender Stereotyping.
Currently, Second Circuit precedent dictates that individuals who face workplace discrimination for failing to conform to certain gender-based stereotypes are protected under Title VII, whereas those who face workplace discrimination because they are gay are not. This artificial distinction leads to baffling results, as is evident from the Simonton and Dawson decisions, in which the Second Circuit categorized the alleged evidence of discrimination as either relating to sexual orientation or gender stereotyping, when sexual orientation discrimination is gender stereotyping.
In Simonton, a panel of the Second Circuit voiced disgust at evidence that Simonton’s co-workers harassed him for being gay by, among other things, calling him a “faggot” and hanging posters stating that he “suffered from mental illness as
23 Philpott v. New York, No. 16-cv-6778 (AKH), 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017); cf. Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (applying Title VII principles in interpreting Title IX, and holding that the distinction between sexual orientation discrimination and gender stereotyping discrimination “is illusory and artificial”).
10

a result of ‘bung hole disorder.’”24 Yet because the Court categorized such
pejoratives as relating to sexual orientation only, the Court ruled that there was insufficient evidence of “discrimination based upon sexual stereotypes.”25 In
doing so, the Court ignored what other courts have since recognized—that the homophobic slurs in Simonton, are, at bottom, gendered forms of harassment.26
Indeed, Simonton’s harassers would not have believed he was “disorder[ed]” and “suffered from mental illness”27 if not for gender-based stereotypes about a man’s
24 232 F.3d at 35. 25 Id. at 38. 26 See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870, 874-75 (9th Cir. 2001) (abusive words like “faggot” fell within Title VII “sex” protections as “closely linked to gender”); Doe by Doe v. City of Belleville, 119 F.3d 563, 593 n.27 (7th Cir. 1997) (“a homophobic epithet like ‘fag,’ for example, may be as much a disparagement of a man’s perceived effeminate qualities as it is of his perceived sexual orientation.”); Henderson v. Labor Finders of Va., Inc., No. 3:12cv-600, 2013 WL 1352158, at *1, *2, *5 (E.D. Va. Apr. 2, 2013) (“[A]s a result of the well-documented relationship between perceptions of sexual orientation and gender norms, gender-loaded language [like “faggot”] can easily be used to refer to perceived sexual orientation and vice versa”); Couch v. Chu, E.E.O.C. Appeal No. 0120131136, 2013 WL 4499198, at *8 (Aug. 13, 2013) (“the words ‘fag’ and ‘faggot’ are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.”). 27 Simonton, 232 F.3d at 35.
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role in sexual relations.28 When the Court reaffirmed Simonton in Dawson, it once again attempted
analytical “calisthenics.”29 Indeed, it struggled to categorize the hairdresser plaintiff’s “conflated” claims arising from her intersectional identity as a woman in a male-dominated industry, a woman who appeared masculine in contravention of femininity norms, and a lesbian in a heterosexual-dominated society.30 As the Court observed, “[w]hen utilized by an avowedly homosexual plaintiff, . . . gender stereotyping claims can easily present problems for an adjudicator [because] . . . [s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”31 Instead of acknowledging that this “blur” represents the impossibility of separating sexual orientation discrimination and gender stereotyping discrimination, the Court labored to fit the facts within those categories, under Simonton’s flawed paradigm. It, thus, tried to parse whether the plaintiff’s colleagues called her “Donald”
28 See Nancy Levit, Theorizing and Litigating the Rights of Sexual Minorities, 19 Colum. J. Gender & L. 21, 49-50 (2010) (“For gay men and lesbians, sexual orientation was originally medicalized as a mental disorder . . . . It was not until 1986 . . . that this category was finally removed from the DSM-IIIR.”). 29 See Hively, 853 F.3d at 350 (“It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”). 30 Dawson, 398 F.3d at 217. 31 Id. at 218 (quotations omitted).
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because of “her masculine appearance” or because of “her sexual orientation,” as though discriminators so differentiate.32 But such analyses contravene Price Waterhouse, which held that employers may not rely on any stereotypes about how a woman should behave, whether it be maintaining a sufficiently feminine appearance or dating men instead of women.33
As Simonton and Dawson demonstrate, artificial distinctions between sexual orientation discrimination and other examples of discrimination based on gender stereotyping prove feeble analytical tools for resolving employment discrimination claims. Current precedent creates an irrational distinction between LGB individuals who do not conform to gender stereotypes (and are protected) and those who do conform to gender stereotypes (and are not). “Plaintiffs who ‘look gay’ succeed under Title VII while those merely known or thought to be gay do not.”34
Current precedent also sends a disturbing message to LGB people in the workforce. Judge Rosenbaum’s dissent in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), aptly noted the problem of construing Title VII to
32 Id. at 222. 33 See 490 U.S. at 251. 34 Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 766 (2014).
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prohibit gender stereotyping but not sexual orientation discrimination. As
explained therein, such a construction:
protects women who act or dress in ways that the employer perceives as gay, because that behavior fails to conform to the employer’s view of how a woman should act. But it allows employers to freely fire women that the employer perceives to be lesbians—as long as the employer is smart enough to say only that it fired the employee because it thought that the employee was a lesbian, without identifying the basis for the employer’s conclusion that she was a lesbian. It cannot possibly be the case that a lesbian who is private about her sexuality—or even a heterosexual woman who is mistakenly perceived by her employer to be a lesbian—can be discriminated against by the employer because she does not comport with the employer’s view of what a woman should be, while the outwardly lesbian plaintiff enjoys Title VII protection.35 Such a framework cannot stand. This Court can now account for “the changing
legal landscape that has taken shape in the nearly two decades since Simonton
issued” and formally recognize that gender stereotyping discrimination encompasses sexual orientation discrimination.36 It should recognize that “if gay,
lesbian, or bisexual plaintiffs can show that they were discriminated against for
failing to comply with some gender stereotype, including the stereotype that men
should be exclusively attracted to women and women should be exclusively
35 See 850 F.3d at 1267 (Rosenbaum, J., dissenting). 36 Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring).
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attracted to men, they have made out a cognizable sex discrimination claim.”37
C. Childhood Bullying And Other Real World Evidence Demonstrate That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping.
It is clear to Legal Aid from its extensive experience in this area, as well as
from the work of legal theorists, social scientists, and other practitioners familiar
with LGB issues, that sexual orientation discrimination is one form that gender
stereotyping takes. But despite significant scholarship in this area,38 the
jurisprudence did not immediately follow. By examining how homophobia
operates in children and young adults, however, the extent to which sexual
37 Id. at 206 (emphasis added). 38 See, e.g., Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. Rev. 471, 498 (2001) (“The sociological claim is that laws that discriminate on the basis of sexual orientation disadvantage women as well as lesbians, gay men, and bisexuals because these laws perpetuate a social system in which women play different social roles than men. The theoretical claim is that these laws are justified by sexism.”); Katherine M. Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 98 (1995) (“[E]very sexual biological fact is meaningful only within a gendered frame of reference”); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 219 (1994) (“Laws that discriminate against gays rest upon a normative stereotype: the bald conviction that certain behavior—for example, sex with women—is appropriate for members of one sex, but not for members of the other sex.”); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 187 (1988) (“[C]ontemporary legal and cultural contempt for lesbian women and gay men serves primarily to preserve and reinforce the social meaning attached to gender”).
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orientation discrimination is rooted in gender stereotyping becomes more obvious. For one thing, homophobic bullying begins in early childhood, long before
puberty or the emergence of sexuality. Even before children may recognize their own sexual orientation, their peers use homophobic slurs to police behavior according to gender norms. As social science research confirms, in the elementary school years, “children learn and invest in the rules of normative masculine and feminine performance” and then “learn to use these social norms to police one another and battle for social position.”39 That is, “elementary schools are, in fact, significant social contexts for the gender socialization of children.”40 Children learn “how to be a ‘boy’ or ‘girl’” and, what’s more, they “learn to interpret and enforce social rules for ‘correct’ gender expression” as “shaped by . . . heterosexual relationships and desire.”41 Because bullied children are too young to engage in same-sex sexual relationships, “[b]oys’ regular misogynistic teasing and sexual harassment of girls, girls’ verbal policing of one another’s appearance and sexual reputations, and boys’ frequent homophobic teasing are examples of verbal aggression that . . . police the boundaries of acceptable gender,” not sexual
39 Melissa J. Smith et al., Binaries and Biology: Conversations with Elementary Education Professionals After Professional Development on Supporting Transgender Students, 80 The Educ. F. 34, 37 (2016). 40 Id. (citations omitted). 41 Id.
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orientation.42 Such school-aged bullying is “deeply entrenched in the perpetuation of
cultural norms and values—significantly, those norms that require a fixed relationship between (hetero) gender, sex and sexuality and the maintaining of ‘gender coherence’ through this ‘constellation.’”43 “Those who most successfully conform to gender expectations are ‘celebrated’ in their peer groups and in school culture,” whereas “[y]oung people who are viewed as having an inadequate gender performance or gender characteristics or a gender identity not normatively associated with their biological sex are more violently and publically ‘marked,’ and denied access to social power and popularity.”44
Gender-stereotyped bullying continues into adolescence as sexuality emerges and young adults develop a sexual orientation. According to a 2012 survey of more than 10,000 Lesbian, Gay, Bisexual and Transgender (“LGBT”)identified youth ages 13-17, LGBT youth are more than two times as likely as nonLGBT youth to say they have been verbally harassed and called names, and
42 Elizabethe Payne et al., LGBTQ Kids, School Safety, and Missing the Big Picture: How the Dominant Bullying Discourse Prevents School Professionals from Thinking about Systemic Marginalization or . . . Why We Need to Rethink LGBTQ Bullying, 1 QED: A J. in GLBTQ Worldmaking 1, 21 (2013). 43 Id. 44 Id. at 22.
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physically assaulted, kicked, or shoved at school.45 Sadly, 92% of LGBT youth “say they hear negative messages about being LGBT.”46 Twenty-one percent of LGBT youth identified school bullying as the most important problem they face (with 26% most worried about non-accepting families), while their peers worry about grades and college.47 But such bullies may not even know the sexual orientation of their victims. Rather, “many youths do not disclose their sexual orientations or gender identities” as a result of “high levels of homophobic reprisal” including from peers, parents, and other authority figures.48
Perhaps it is not surprising then that, “a majority of peer-to-peer aggression in U.S. public schools is some form of gender policing,”49 and student victims of LGBT harassment “are often targeted for ‘failing to conform to stereotypical
45 Growing Up LGBT in America, Human Rights Campaign, at 16, available at http://www.hrc.org/youth-report (last visited June 23, 2017). This is the largest known sample of LGBT youth, and drew responses from every region of the country and many social, cultural, ethnic, and racial backgrounds. 46 Id. at 18. 47 Id. at 2. 48 Angela Irvine, “We’ve Had Three of Them”: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System, 19 Colum. J. of Gender & L. 675, 677 (2010). 49 Payne, supra note 42 at 25-26 (emphasis in original).
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notions of masculinity and femininity.’”50 Specifically, “overt acts of violence against LGBTQ youth (or those who are perceived to be) are . . . explicit effects of heteronormative school cultures that . . . privilege idealized (hetero) gender performances and create social benefits for peer-to-peer policing of non-normative sexualities and genders.”51
Even those of us who are many years removed from school may be familiar with the poignant depiction of this very concept from the 2017 Academy Awards’ Best Picture, “Moonlight.” In the film, a coming-of-age story of a young, gay man, the protagonist faces intense homophobic bullying and questions about his sexuality, at an age even before he identifies as gay, because he is perceived as “soft.” In an interview about the film’s themes, playwright Tarell Alvin McCraney, whose play the film is based upon, explained: “if we look at all real homophobia, it’s anti-feminism. It’s really misogyny dressed up, or pointed at men. What is the term in which we denigrate men for being homosexual? It is that
50 Melissa J. Smith et al., Educator Evaluations of School Climate for LGBTQ Students: A Reiteration of the Bullying Discourse in 5 LGBTQ Voices in Education: Change the Culture of Schooling 73, 73 (2015). 51 Id. at 74 (citation omitted).
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they’re a ‘girl’ or they’re weaker.”52 Accordingly, “patterns of targeting indicate
that youths’ understanding (and marking) of their LGBTQ and gender
nonconforming peers is not ‘based solely on sexual orientation, but rather from
judgments about perceived tendencies to engage in forms of expression that run counter to gender conventions.’”53 It is, thus, the case that, “acts of LGBTQ
harassment are ‘reiterations of the dominant order’ that normalize the
marginalization of students who do not conform or meet the standards of hegemonic gender in some way.”54
Childhood bullying dynamics demonstrate that sexual orientation
discrimination relies on gender stereotype discrimination that extends into adulthood.55 “Gender norms start at an early age. The result is gay men and
52 HRC Staff, Coming of Age: Creators of Golden Globe Winner “Moonlight” Discuss Bullying, Masculinity, Human Rights Campaign (Jan. 9, 2017), available at https://tinyurl.com/y7dmvc46 (last visited June 25, 2017). 53 Payne, supra note 42 at 22 (quotation omitted). 54 Id. at 25 (quotation omitted). 55 See Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing GenderConforming and Gender-Nonconforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465, 486-97 (2004) (discussing the nature of gender stereotypes in gay people); Anthony E. Varona et al., En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 72-73 (2000) (“[G]ay people, simply by identifying themselves as gay, are violating the ultimate gender stereotype—heterosexual attraction.”).
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women are often discriminated against because of rejection of the traditional male and female roles.”56 As students move from the schoolyard to the workplace, employment discrimination takes the place of such bullying.57
In sum, gender stereotyping is deeply embedded in homophobic bullying from an early age, even before sexuality is in play. Later on, gender stereotyping remains at the core of homophobic workplace discrimination. No matter how gender conforming a gay employee may otherwise be, gender stereotyping is bound up inextricably with the homophobic discrimination he or she may face. Because sexual orientation discrimination inherently involves gender stereotyping, which is already prohibited under Title VII as discrimination “because of . . . sex,” it follows that this Court should also recognize that sexual orientation discrimination is prohibited under Title VII.
56 Major Velma Cheri Gay, 50 Years Later … Still Interpreting the Meaning of “Because of Sex” Within Title VII and Whether It Prohibits Sexual Orientation Discrimination, 73 A. F. L. Rev. 61, 98 (2015). 57 See Ken Corbett, Faggot=Loser, 2 Studies in Gender and Sexuality 3, 3-28 (2001) (discussing how homophobic harassment is equally rooted in definitions of masculinity as gay fear); Michael S. Kimmel, Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity, 33 Readings For Diversity and Social Justice, 213-19 (2001) (same). See Section II.B, infra for a discussion of sexual orientation discrimination in the workplace.
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II. INTERPRETING TITLE VII TO PROTECT AGAINST SEXUAL ORIENTATION DISCRIMINATION WOULD FURTHER TITLE VII’S LEGISLATIVE PURPOSE AND COMBAT THE ECONOMIC AND OTHER HARMS SUFFERED BY LGB PEOPLE. Interpreting Title VII to prohibit discrimination on the basis of sexual
orientation is also consistent with an goal of Title VII: the mitigation and prevention of the harmful economic effects that flow from employment discrimination. Through its decades of work with the LGB community, Legal Aid is well aware of the harmful effects that flow from workplace discrimination based on sexual orientation, including job insecurity, poverty, homelessness, depression, and suicide. Recognizing that Title VII includes LGB status will help to protect gay people and their families in accord with the statute’s purpose.
A. Title VII Was Intended To Protect Certain Groups From The Harmful Economic Effects That Flow From Employment Discrimination.
One goal for Title VII was to address poverty caused by workplace discrimination. Congress passed the Civil Rights Act of 1964, and Title VII therein, to create a level playing field for all Americans in areas of employment,
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education, housing, and elsewhere.58
As Title VII’s legislative history shows, Congress recognized the economic
harms caused by employment discrimination, including pervasive and deep-seated poverty, and it resolved to combat those harms by enacting Title VII.59
Moreover, in interpreting Title VII, the Supreme Court has long emphasized
that Title VII “deals” with the economic harm to certain groups that employment discrimination causes.60 It explained that Title VII is fundamentally concerned
with the “consequences” of employment discrimination, “not simply the motivation.”61
58 See generally 42 U.S.C. § 2000e et seq. (July 2, 1964); see also H.R. Rep No. 88-914, pt. 1, at 3 (1963), as reprinted in 1964 U.S.C.C.A.N. 2391, 2393 (General Statement) (declaring the intent of the Civil Rights Act of 1964 to be “general in application and national in scope” so as to “eradicat[e] significant areas of discrimination on a nationwide basis”). 59 See, e.g., H.R. Rep No. 88-914, pt. 2, at 102 (1963), as reprinted in 1964 U.S.C.C.A.N. 2391, 2514-15 (Additional Views of Rep. McCulloch et al.) (“A nation need not and should not be converted into a welfare state to reduce poverty, lessen crime, cut down unemployment, or overcome shortages in skilled occupational categories. All that it needed is the institution of proper training programs and the elimination of discrimination in employment practices.”). 60 See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 420 (1975) (“Title VII deals with legal injuries of an economic character occasioned by racial or other antiminority discrimination.”). 61 Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (emphasis added).
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Furthermore, the EEOC’s Regulations and Guidelines echo the goal of improving economic prosperity by eliminating discrimination, explaining that:
Congress enacted [T]itle VII in order to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place. These conditions were part of a larger pattern of restriction, exclusion, discrimination, segregation, and inferior treatment of minorities and women in many areas of life.62 As explained below, research shows that LGB people experience workplace discrimination, which causes serious economic harm of the sort that Title VII is generally designed to prevent. Moreover, young people in the LGB community experience discrimination that hurts them economically and hinders their ability to reach their full potential as adults. B. Sexual Orientation Discrimination Negatively Affects LGB
Employment Opportunities And Overall Well Being. Legal Aid has long fought the exacerbating influence of sexual orientation discrimination on poverty and homelessness within the LGB community. The pervasive discrimination against this group has negatively impacted the LGB community’s job opportunities in measurable ways. In a 2011 study, a researcher sent 1,769 pairs of fictitious resumes to white-collar employers in seven states.63
62 29 C.F.R. § 1608.1. 63 See Andras Tilcsik, Pride and Prejudice: Employment Discrimination Against Openly Gay Men in the United States, 117 Am. J. of Soc. 586, 601 (2011).
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One resume in each pair listed experience in a gay community organization, while the other resume in the pair did not.64 The study showed that the “applicant” with the gay organization on his resume was 40% less likely to receive a call for an interview.65 The researcher thus concluded that “gay men encounter significant barriers in the hiring process because, at the initial point of contact, employers more readily disqualify openly gay applicants than equally qualified heterosexual applicants.”66
This issue has not improved since 2011. In a 2015 study, the American Psychological Association found that 33% of LGBT adults reported being unfairly not hired for a job, compared to 20% of white men. A 2016 study showed that between 11% and 28% of LGB workers reported losing a promotion because of their sexual orientation.67
Moreover, a negative synergy occurs where LGB people possess other economically and politically disfavored identities. For example, a 2015 study
64 Id. at 597. 65 Id. at 605 (emphasis added). 66 Id. at 614. 67 See Sejal Singh et al., Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways, Center for American Progress (May 2, 2017), available at https://tinyurl.com/ybxbzttt (last visited June 25, 2017).
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showed that gay black workers earn less than the combined wage gaps for race and sexual orientation.68 As the study’s authors explained:
[The wage penalty suffered by gay blacks compared with white married men] is even larger than the sum of the within-race sexual orientation wage penalty (13.8%) and the racial wage penalty for gay black men (6.6%). This indicates the earnings penalties of black gay men are not simply the sum of their distinct minority sexual orientation and race penalties, but rather that there is a magnifying effect of double minority status penalizing black gay workers.69 Moreover, this effect is “most pronounced for lower-income workers,” that is, those already struggling to make ends meet.70
In addition to hindering LGB individuals’ ability to secure employment and
advance in their careers once employed, discrimination directed at this community
has subtle, sometimes invisible effects that are equally damaging. For example,
69% of LGBT adults who experienced sexual orientation- or gender identity-based
discrimination in the past year reported that the discrimination negatively affected
their psychological wellbeing; 44% said it negatively affected their physical wellbeing; and 53% reported it negatively impacted their work environment.71
68 See Jamie H. Douglas et al., The Sexual Orientation Wage Gap for Racial Minorities, 54 Indus. Relations 59, 85-86 (2015). 69 Id. 70 Id. at 96. 71 See Singh, supra note 67.
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Studies have also shown that mood and anxiety disorders have a particularly high incidence in the LGB community. In a meta-analysis of 25 studies on the prevalence of mental disorders in LGB people, researchers found higher incidence of suicidal behavior, mental disorder, and substance abuse in the LGB community than among heterosexuals.72 Although the researchers noted that more research was needed, they theorized that “the social hostility, stigma and discrimination that most LGB people experience is at least part of the reason for the higher rates of psychological morbidity observed.”73
Although social attitudes toward the LGB community have improved in recent years, there is disturbing evidence that discrimination against this community remains strong and has forced some back into the closet. A 2014 Human Rights Campaign Study showed, for example, that 53% of LGBT workers hide their sexual orientation from co-workers.74 A 2016 study concurred; while as many as 32% of LGB individuals who had not experienced discrimination in the
72 See Michael King et al., A Systemic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People, 8 BMC Psychiatry 70 at *13 (Aug. 18, 2008), available at https://tinyurl.com/y82ylc8b (last visited June 25, 2017). 73 Id. at *14. 74 Deena Fidas et al., The Cost of the Closet and the Rewards of Inclusion, Human Rights Campaign, at 9 (May 2014), available at https://tinyurl.com/yb8wnsk5 (last visited June 25, 2017).
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past year used “vague language when talking about relationships,” that percentage rose to over 70% for those who had experienced discrimination.75 The same study reported that over one-fifth of LGBT workers had searched for a different job because their current work environment was not accepting of their sexual orientation; almost one in ten had left a job for that reason.76
The effects of discrimination do not stop at how LGB individuals describe their professional relationships, but spread to the very way they speak, walk, and dress: 7% of those who had not reported discrimination said they changed the way they talk and walk to avoid discrimination; among those reporting discrimination in the past year, 39% and 27% reported changing their timbre and gait, respectively.77 Fifty-four percent of respondents who had experienced discrimination in the past year were afraid to even speak about LGBT issues in social situations.78 Even those who have not experienced discrimination first-hand typically suffer its effects through common perceptions of the gay community. As such, 24% of LGBT respondents who had not experienced discrimination also
75 Singh, supra note 67. 76 Fidas, supra note 74 at 22-23. 77 Singh, supra note 67. 78 Id.
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avoided speaking about LGBT issues in social situations.79 This data and Legal Aid’s experience reveal that homophobia drives a vicious cycle, increasingly reducing this group’s economic and political power: discrimination forces the LGB community back into the closet, diminishing its visibility and propensity to discuss LGB issues with those outside the community. If and when LGB individuals are discriminated against, even after conforming to most gender stereotypes, they can be, and have been, fired for continuing to violate the most sacred gender stereotype—attraction to the opposite sex.
C. Sexual Orientation Discrimination Exacerbates Poverty. Unfortunately, LGB discrimination worsens poverty in the community, even as many harbor the misconception that the LGB community is one of disproportionate wealth and political power.80 A goal of Legal Aid’s work in this area is to dispel that common myth.
79 Id. 80 See Romer v. Evans, 517 U.S. 620, 636, 645-46 (1996) (Scalia, J., dissenting); Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, Bloomberg (July 20, 2016), available at https://tinyurl.com/jzdaptl (last visited June 25, 2017).
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Indeed, the myth is far from true.81 As reported in 2013:
[A] quarter of bisexual women [were] poor (29.4%) and more than 1 in 5 lesbians [were] in poverty (22.7%), a rate higher than the poverty rate among heterosexual women (21.1%) . . . . Similarly, a greater percentage of gay (20.5%) and bisexual men (25.9%) fell at or below the federal poverty line than heterosexual men (15.3%).82
Poverty in the LGB community has many effects, but a more pronounced
one is pervasive food insecurity. A 2016 report found that “LGB adults are 1.36
times more likely than non-LGB adults of the same age to have participated in
SNAP [(Supplemental Nutrition Assistance Program)] in the past year,” and for
same-sex couples, the number jumps to 1.58 times more likely.83
LGB youth are also disproportionately indigent and discriminated against.
As the Williams Institute notes, and as Legal Aid’s experience confirms,
81 See, e.g., Rob Smith, Opinion: The Bearable Whiteness of Being Gay, InAmerica CNN Blogs (Feb. 2, 2012), available at https://tinyurl.com/6nyus6k (last visited June 25, 2017) (noting overrepresentation of affluent, white males in media depictions of LGB community). 82 M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute, at 9 (June 2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGB-Poverty-UpdateJun-2013.pdf (last visited June 25, 2017). Although these differences were not statistically significant, the authors believed that their data’s consistency with other data increased the likelihood that the data “represent[ed] meaningful patterns of greater vulnerability to poverty in the LGB community.” Id. 83 Taylor N.T. Brown et al., Food Insecurity and SNAP Participation in the LGBT Community, The Williams Institute, at 3 (July 2016), available at http://williamsinstitute.law.ucla.edu/research/health-and-hiv-aids/lgbt-people-aredisproportionately-food-insecure/ (last visited June 25, 2017).
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“[c]hallenging environments at home and at school contribute to an overrepresentation of LGBT youth in the child welfare system, the youth homeless population, and the juvenile justice system,”84 which negatively affects LGB youths’ employment opportunities as adults and prevents many from escaping the poverty cycle.
Title VII’s protections have the potential to help remedy the impact of these wrongs once a young LGB person starts applying for jobs.85
CONCLUSION For the reasons articulated above, Legal Aid respectfully requests that this en banc Court overrule both Simonton and Dawson, which created an artificial and untenable distinction between discrimination based on sexual orientation and discrimination based on failure to conform to gender stereotypes. The stereotype
84 Christy Mallory et al., The Economic Impact of Stigma and Discrimination Against LGBT People in Georgia, The Williams Institute, at 52 (2017) available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Economic-Impact-ofDiscrimination-and-Stigma-against-LGBT-People-in-Georgia-FINAL-4.pdf (last visited June 25, 2017). 85 Emir Ozeren, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 109 Procedia Soc. & Behav. Sci. 1203, 1212 (2014) (“The introduction of non-discrimination laws can be related to changes in specific workplace [behaviors,] . . . as well as to increases in overall tolerance and acceptance in the workplace”).
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that a person should exclusively be attracted to members of the opposite sex is a gender stereotype. Legal theory and social science bear that out.
Moreover, employment discrimination against individuals on the basis of sexual orientation inflicts widespread harm. Contrary to the myth of a wealthy community with outsized political influence, many LGB individuals exist on society’s fringes. But this need not continue. Recognizing that Title VII also protects the LGB community will go far towards remediating such wrongs.
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Dated: June 26, 2017
Richard Blum, of Counsel Heidi Cain, of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Tel.: +1 212 577 3648 Fax.: +1 646 616 4648 rblum@legal-aid.org hlcain@legal-aid.org
Nicole S. Tate-Naghi GOODWIN PROCTER LLP 135 Commonwealth Drive Menlo Park, California 94025 Tel.: +1 650 752 3100 Fax.: +1 650 853 1038 ntatenaghi@goodwinlaw.com

Respectfully submitted,
/s/ Frederick H. Rein Frederick H. Rein Michael B. Cottler Amanda B. Protess Tiffany Mahmood Christopher J. Morten GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel.: +1 212 813 8800 Fax.: +1 212 355 3333 frein@goodwinlaw.com mcottler@goodwinlaw.com aprotess@goodwinlaw.com tmahmood@goodwinlaw.com cmorten@goodwinlaw.com
Jonathan J. Whitney GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: +1 617 570 1000 Fax.: +1 617 523 1231 jwhitney@goodwinlaw.com
Attorneys for Amicus Curiae, The Legal Aid Society

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B), and this Court’s June 19, 2017 order, ECF No. 289, because it contains 6,799 words, excluding exempted parts, as determined by the word-counting feature of Microsoft Word. This brief complies with the typeface and type style requirements of Federal Rules of Appellate Procedure 32(a)(5) and (a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font.
/s/ Frederick H. Rein Frederick H. Rein GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel.: +1 212 813 8800 Fax.: +1 212 355 3333 frein@goodwinlaw.com
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CERTIFICATE OF SERVICE
The undersigned certifies that true and correct copies of this Brief of The
Legal Aid Society as Amicus Curiae in Support of Plaintiffs-Appellants were
served electronically on all counsel of record, who have consented to electronic
service, on June 26, 2017.
/s/ Frederick H. Rein Frederick H. Rein GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 Tel.: +1 212 813 8800 Fax.: +1 212 355 3333 frein@goodwinlaw.com

 
 15-3775

United States Court of Appeals for the Second Circuit
MELISSA ZARDA, co-independent executors of the estate of Donald Zarda, 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, RAY MAYNARD, Defendants-Appellees.
On Appeal from the United States District Court for the Eastern District of New York

BRIEF FOR AMICI CURIAE STATES OF NEW YORK, CONNECTICUT, AND VERMONT IN SUPPORT OF APPELLANTS

BARBARA D. UNDERWOOD Solicitor General
STEVEN C. WU Deputy Solicitor General ANDREW W. AMEND Senior Assistant Solicitor General
of Counsel
JORDAN GOLDBERG Law Intern
(Additional counsel listed on signature page)

ERIC T. SCHNEIDERMAN Attorney General State of New York
120 Broadway New York, NY 10271 (212) 416-8020
Dated: June 26, 2017

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ....................................................................iii
INTEREST OF THE AMICI STATES ...................................................... 1
QUESTION PRESENTED........................................................................ 2
BACKGROUND ........................................................................................ 2
SUMMARY OF ARGUMENT ................................................................... 5
ARGUMENT ............................................................................................. 7
POINT I
TITLE VII’S BAR ON SEX DISCRIMINATION PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION ...................... 7
A. Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination Because It Amounts to Discrimination for Failure to Conform to Conventional Gender Roles. ............................................................................ 8
B. Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination Because It Treats Similarly Situated Men and Women Differently. .................................. 12
C. Sexual-Orientation Discrimination Is Ordinarily Indistinguishable from Other Forms of Sex Discrimination Prohibited by Title VII. ................................. 16
D. Congressional Inaction Does Not Compel a Different Reading of Title VII. ............................................................... 22

Page POINT II
READING TITLE VII TO EXCLUDE SEXUAL-ORIENTATION DISCRIMINATION WOULD PREJUDICE IMPORTANT STATE INTERESTS AND LIMIT ENFORCEMENT ACTIVITIES AGAINST HARMFUL ACTS OF DISCRIMINATION................................................................................... 27
A. Sexual-Orientation Discrimination Harms the Amici States and Their Residents..................................................... 28
B. Reading Title VII to Prohibit Sexual-Orientation Discrimination Will Provide a Valuable Supplement to the Amici States’ Efforts to Combat Invidious Discrimination. ....................................................................... 34
CONCLUSION ........................................................................................ 38
ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)............................................................................. 28

Baldwin v. Foxx EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015)................................................................................. 4, 15

Bolling v. Sharpe, 347 U.S. 497 (1954)............................................................................. 23

Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016).................................................. 10

Bowers v. Hardwick, 478 U.S. 186 ................................................................................... 22-23

Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ............................................ 10, 19

Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ........................................................ passim

City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978)......................................................................... 9, 12

Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ...................................................... 3, 18, 19

Dezaio v. Port Auth. of N.Y. & N.J., 205 F.3d 62 (2d Cir. 2000) .................................................................. 35

Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003) ....................................................... 17, 19
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)....................................................... passim

iii

Page(s)
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) ................................................................ 14
Howell v. North Central Coll., 320 F. Supp. 2d 717 (N.D. Ill. 2004) ................................................... 19
Lawrence v. Texas, 539 U.S. 558 (2003)............................................................................... 3
Loving v. Virginia, 388 U.S. 1 (1967)............................................................................ 13-14
Montgomery v. Independent School District No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000)................................................ 21
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..................................................................... 3, 23
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).......................................................................... 23-24
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) ............................................................. 14
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)............................................................................. 24
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)....................................................................... 2, 8, 9
Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009) ........................................................... 17-18
Rivera v. Heyman, 157 F.3d 101 (2d Cir. 1998) ................................................................ 35
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .............................................................. 2, 11
iv

Page(s)
Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) ............................................................. 18
United States v. Price, 361 U.S. 304 (1960)............................................................................. 25
United States v. Windsor, 133 S. Ct. 2675 (2013)........................................................................... 3
Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017) (per curiam) ............................................ 4-5
Zuber v. Allen, 396 U.S. 168 (1969)............................................................................. 24
LAWS
15 U.S.C. § 1477 ...................................................................................... 36
42 U.S.C. § 1981a ................................................................................................ 37 § 2000e-2 ................................................................................... 8, 13, 15
Conn. Gen. Stat. § 46a-81c ...................................................................... 22
N.Y. Exec. Law § 296............................................................................... 22
Vt. Stat. Ann. tit. 21 § 495 ...................................................................... 22
MISCELLANEOUS AUTHORITIES
153 Cong. Rec. H16,882 (daily ed. Dec. 19, 2007) .................................. 36
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994) ...10, 19, 20
Anthony E. Varona and Jeffrey M. Monks, En/Gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67 (2000) ................................................................... 20-21
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Page(s)
Brad Sears and Christy Mallory, Documented Evidence of Employment Discrimination and its effects on LGBT People (Williams Inst. 2011), http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Sears-Mallory-Discrimination-July-20111.pdf..... 29, 30
Carol M. Doyle et al., Perceptions of Same-Sex Relationships and Marriage as Gender Role Violations: An Examination of Gendered Expectations (Sexism), 62 J. of Homosexuality 1576 (2015).............................................................................................. 19-20
Catalyst Information Ctr., Why Diversity Matters (2013), http://www.catalyst.org/system/files/why_diversity_matters_cat alyst_0.pdf ........................................................................................... 32
Con Edison Settles Sexual Harassment Lawsuit for $3.8 Million, ABC Eyewitness News (New York, NY) (Sept. 9, 2015), http://abc7ny.com/business/con-edison-settles-sexualharassment-lawsuit-for-$38-million/975647/ ..................................... 36
Crosby Burns, The Costly Business of Discrimination: The Economic Costs of Discrimination and the Financial Benefits of Gay and Transgender Equality in the Workplace (Ctr. for Am. Progress 2012), https://www.americanprogress.org/issues/ lgbt/reports/2012/03/22/11234/thecostly-business-ofdiscrimination/ .................................................................................... 32
Crosby Burns et al., Gay and Transgender Discrimination in the Public Sector: Why It’s a Problem for State and Local Governments, Employees, and Taxpayers (Ctr. for Am. Progress & AFSCME 2012), https://www.americanprogress.org/ issues/lgbt/reports/2012/08/30/35114/gayand-transgenderdiscrimination-in-the-public-sector/ ............................................. 32, 34
David Leonhardt, New York Still Has More Gay Residents Than Anywhere Else in U.S., N.Y. Times, Mar. 23, 2015, https://www.nytimes.com/2015/03/24/upshot/new-york-still-hasmore-gayresidents-than-anywhere-else-in-us.html ........................... 28
vi

Page(s)
Gallup, Inc., Vermont Leads States in LGBT Identification (Feb. 6, 2017), http://www.gallup.com/poll/203513/vermont-leads-stateslgbt-identification.aspx ....................................................................... 28
HUD Exchange, LGBT Homelessness, https://www.hudexchange.info/homelessness-assistance/ resources-for-lgbthomelessness/#resources-for-homeless-lgbtindividuals-in-crisis. ........................................................................... 30
Human Rights Campaign Found., 2014 Municipal Equality Index: A Nationwide Evaluation of Municipal Law 6 (2014), http://hrcassets.s3-website-us-east-1.amazonaws.com//files/ assets/resources/MEI-2014.pdf........................................................... 33
Jody L. Herman, The Cost of Employment and Housing Discrimination Against Transgender Residents of New York (Williams Inst. 2013), http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Herman-NY-Cost-of-Discrimination-April2013.pdf............................................................................................... 31
Lester V. Berrey and Melvin Van Den Bark, The American Thesaurus of Slang: A Complete Reference Book of Colloquial Speech (1942) ...................................................................................... 11
M.V. Lee Badgett et al., The Business Impact of LGBT-Supportive Workplace Policies (Williams Inst. 2013), https://williamsinstitute.law.ucla.edu/wp-content/uploads/ Business-Impact-LGBT-Policies-Full-Report-May-2013.pdf ............. 32
M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community (Williams Inst. 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBPoverty-Update-Jun-2013.pdf ............................................................ 31
Matt Motyl et al., How Ideological Migration Geographically Segregates Groups, 51 J. Experimental Soc. Psychol. 1 (2014), http://americanvalues.org/catalog/pdfs/ideological-migrationmotyl.pdf ............................................................................................. 33
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Page(s)
Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) ...................... 11
Movement Advancement Project, Ctr. for Am. Progress, and Human Rights Campaign, A Broken Bargain: Discrimination, Fewer Benefits, and More Taxes for LGBT Workers (Condensed Version) (2013), http://www.lgbtmap.org/file/a-broken-bargaincondensed-version.pdf......................................................................... 30
Movement Advancement Project, LGBT Populations (June 22, 2017), http://www.lgbtmap.org/equality-maps/lgbt_populations ...... 28
Randy Albelda et al., Poverty in the Lesbian, Gay, and Bisexual Community (Williams Inst. 2009), http://williamsinstitute.law. ucla.edu/wp-content/uploads/Albelda-Badgett-SchneebaumGates-LGB-Poverty-Report-March-2009.pdf ..................................... 30
Sarah McBride et al., We the People: Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections (Ctr. for Am. Progress 2014), https://cdn.americanprogress.org/wp-content/uploads/ 2014/12/LGBTWeThePeople-report-12.10.14.pdf ........................ 29, 30
Sarah McBride and Katie Miller, High Stakes: LGBT Americans Cannot Afford to Lose Unemployment Insurance (Ctr. for Am. Progress Jan. 14, 2014), https://cdn.americanprogress.org/wpcontent/uploads/2014/12/LGBT-WeThePeople-report12.10.14.pdf ......................................................................................... 30
Williams Inst., LGBT Data and Demographics (2017), https://williamsinstitute.law.ucla.edu/visualization/lgbtstats/?topic=LGBT#density ................................................................ 28
viii

INTEREST OF THE AMICI STATES The States of New York, Connecticut, and Vermont file this brief as amici curiae in support of plaintiffs-appellants pursuant to Federal Rule of Appellate Procedure 29(a)(2). The amici States—the three States that comprise this Circuit— share a strong commitment to ending discrimination on the basis of sexual orientation. Such discrimination has no legitimate basis, and in the employment context harms gay, lesbian, and bisexual people by limiting their ability to function at work or denying them jobs altogether. These outcomes cause tangible economic and other harms to the amici States and their residents. The amici States thus share a strong interest in construing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to bar sexualorientation discrimination. The additional federal remedies and procedures afforded by Title VII complement state and local protections, and by so doing assist the States in pursuing their goal of eradicating and remedying invidious discrimination against gay, lesbian, and bisexual people.

QUESTION PRESENTED Does Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination “because of . . . sex”?
BACKGROUND This case presents the question whether Title VII’s broad prohibition on sex discrimination encompasses discrimination based on sexual orientation. This Court has held that it does not, creating a legal distinction between discrimination based on a person’s nonconformity with gender stereotypes, which is prohibited by Title VII, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and discrimination based on sexual orientation, which this Court has said is not. See Simonton v. Runyon, 232 F.3d 33, 37 (2d Cir. 2000). Recently, however, this Court has noted the elusiveness of that distinction, observing that stereotypes about proper gender roles will often “necessarily blur” into similar (or identical) stereotypes regarding heterosexuality and homosexuality, and that attempting to disentangle gender stereotyping from sexualorientation discrimination “can easily present problems for an
2

adjudicator.” Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (quotation marks omitted).
Most recently, this Court squarely called into question the viability of this distinction in Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) (per curiam). Although the panel there affirmed the dismissal of plaintiff’s claim of sexual-orientation discrimination under Simonton and Dawson, id. at 199, Chief Judge Katzmann wrote a concurring opinion, joined by Judge Brodie of the United States District Court for the Eastern District of New York (sitting by designation), concluding that it would “it would make sense for the Court to revisit” Simonton “when the appropriate occasion presents itself,” id. at 202 (Katzmann, C.J., concurring).
Chief Judge Katzmann noted in particular the “the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.” Id. Relevant developments include the Supreme Court’s decisions recognizing increased legal protections for gay, lesbian, and bisexual people in Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013); and Lawrence v. Texas, 539 U.S. 558 (2003). In addition, the Equal Employment Opportunity
3

Commission (EEOC) concluded in 2015 that Title VII prohibits sexualorientation discrimination as a form of sex discrimination. See Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). Chief Judge Katzmann outlined several arguments that supported the EEOC’s conclusion and that had not been addressed by Simonton or Dawson. Christiansen, 852 F.3d at 202-06 (Katzmann, C.J., concurring).
Those same arguments were later adopted by the United States Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc), issued one week after this Court decided Christiansen. Hively held that Title VII prohibits sexual-orientation discrimination as a species of sex discrimination, both as a logical consequence of the reasoning of Price Waterhouse and as a direct consequence of the “straightforward language” of the statute. Id. at 346, 350.
Following the Seventh Circuit’s decision in Hively, this Court granted rehearing en banc in this case to reconsider its decisions in Simonton and Dawson. (Order (May 25, 2017), ECF No. 271.) This particular appeal arises from a lawsuit filed by Donald Zarda, a gay man who alleged that he was fired because of his sexual orientation. See Zarda
4

v. Altitude Express, 855 F.3d 76, 79 (2d Cir. 2017) (per curiam). Relying on Simonton and Dawson, the United States District Court for the Eastern District of New York (Bianco, J.) granted defendant’s motion for summary judgment on Zarda’s Title VII claim for sexual-orientation discrimination. Id. at 79. A panel of this Court affirmed on the basis of Simonton. Id. at 82.
The amici States file this brief to urge the Court to overrule Simonton and join the Seventh Circuit and the EEOC in concluding that Title VII’s ban on discrimination “because of . . . sex” includes discrimination based on sexual orientation.
SUMMARY OF ARGUMENT Sexual-orientation discrimination is a form of sex discrimination that violates Title VII. That statute strikes broadly at all forms of disparate treatment based on an employee’s sex, including punishing an employee’s failure to conform to sex stereotypes. Yet sexual-orientation discrimination does just that: it penalizes employees for failing to conform to sex stereotypes, namely, that men should seek and form intimate relationships only with women, and women only with men. That
5

these stereotypes address intimate behavior—as opposed to other conduct subject to received notions of how men and women ought to behave—does not remove them from the broader category of sex stereotypes that employers may not impose without violating Title VII.
In addition, sexual-orientation discrimination impermissibly discriminates on the basis of sex by punishing employees for conduct that would be acceptable if they were of the opposite sex. In this regard, such discrimination is no different from penalizing an employee for an intimate association with a member of a different race, which this Court has held constitutes discrimination because of the employee’s own race.
Both judicial and practical experience, moreover, demonstrate that sexual-orientation discrimination is ordinarily indistinguishable from other types of sex discrimination. For instance, a homophobic epithet can be an expression of animus against an employee’s nonconformity with gender stereotypes about dress or behavior as well as an expression of animus against the employee’s (actual or perceived) sexual orientation. Indeed, empirical and anecdotal evidence demonstrate that both types of animus frequently occur together. These points reinforce the profound difficulty of attempting to disentangle the two types of animus and
6

provide additional reason to recognize that Title VII’s ban on discrimination “because of . . . sex” applies to both. And the lack of language in Title VII specifically identifying “sexual orientation” discrimination as a separate category from sex discrimination does not compel a different conclusion.
Title VII makes additional remedies and resources available to help prevent and remedy sex discrimination, beyond those provided by the amici States. The amici States welcome bringing those remedies and resources to bear on discrimination on the basis of sexual orientation, as a vital supplement to their own efforts to end such discrimination.
ARGUMENT POINT I
TITLE VII’S BAR ON SEX DISCRIMINATION PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION Courts and commentators have identified several different reasons that discrimination on the basis of sexual orientation should be regarded as a species of sex discrimination within the meaning of Title VII. While some of these reasons start with the plain text of the statute, and others with judicial glosses on that text, they all end up in the same place:
7

discrimination on the basis of sexual orientation is not merely similar to sex discrimination—it is both logically and empirically indistinguishable from discrimination on the basis of sex.
A. Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination Because It Amounts to Discrimination for Failure to Conform to Conventional Gender Roles. The Supreme Court has long recognized that Title VII’s bar on
discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2, prohibits disparate treatment based on an employee’s failure to live up to gender stereotypes. See Price Waterhouse, 490 U.S. at 251 (plurality op.); id. at 261 (O’Connor, J., concurring in the judgment). In Price Waterhouse, for example, the female plaintiff had been denied a promotion because of her nonconformity with stereotypes about female demeanor, speech, and dress: she was told to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” and was criticized for being too “macho.” Id. at 235 (plurality op.). The Court held that Title VII’s ban on sex discrimination extended to this type of discrimination, reasoning that Title VII prohibits employers from “assuming or insisting that [employees] match[ ] the stereotype
8

associated with their group.” Id. at 251 (plurality op.); see also City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 (1978) (“It is now well recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females.”).
Price Waterhouse thus established the principle that Title VII bars employers from disfavoring individuals because of their failure to conform to received notions of how a woman or a man ought to behave. That principle compels the conclusion that Title VII bars discrimination on the basis of sexual orientation. At base, such discrimination penalizes individuals for departing from conventions about how men and women should conduct themselves in intimate matters—namely, that men should desire and form intimate connections only with women, and women only with men. As the Seventh Circuit recently observed in Hively, homosexuality (or the homosexual component of bisexuality) represents the “ultimate case of failure to conform” to gender stereotypes, at least in “modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional.” 853 F.3d at 846 (emphasis added). “[T]he idea that men should be exclusively attracted to women
9

and women should be exclusively attracted to men” is thus “as clear a gender stereotype as any.” Christiansen, 852 F.3d at 206 (Katzmann, C.J., concurring); see also Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 269 (D. Conn. 2016) (calling homosexuality “the ultimate gender non-conformity”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (homosexuality triggers the “gender stereotype” that “‘real’ men should date women, and not other men”).
As one commentator has put it, “[t]here is nothing esoteric or sociologically abstract in the claim that the homosexuality taboo enforces traditional sex roles”; indeed, “[m]ost Americans learn no later than high school that one of the nastier sanctions that one will suffer if one deviates from the behavior traditionally deemed appropriate for one’s sex is the imputation of homosexuality.” Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 235 (1994) (emphasis omitted). The gendered nature of certain epithets used to describe homosexuals reinforces this point: for instance, gay men are labeled “queens,” and historically have been branded “nancies” or “gentlemisses,” to highlight how their behavior, including their choices of intimate relationships, departs from traditional male
10

stereotypes.1 Discrimination on the basis of sexual orientation is thus simply a subset of the broader category of discrimination based on gender nonconformity that Price Waterhouse held is prohibited by Title VII.
This Court has previously recognized that a gay man may pursue a Title VII claim under Price Waterhouse by alleging employment discrimination based on the fact that he overtly “behaved in a stereotypically feminine manner”—e.g., acted or dressed or spoke in a particular way. Simonton, 232 F.3d at 38; see also Christiansen, 852 F.3d at 200-01 (allowing such a claim to proceed based on gay plaintiff’s allegations “that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons”). But this Court declined to recognize that Title VII applied to employment discrimination on the basis of sexual orientation alone. Simonton, 232 F.3d at 37. There is no principled basis for this distinction. Discrimination on the basis of sexual orientation is just as much a reaction to gender nonconformity as discrimination on the basis of an employee’s overtly nonconformist
1 See Merriam-Webster’s Collegiate Dictionary, s.v. queen, at 1020 (11th ed. 2003); Lester V. Berrey and Melvin Van Den Bark, The American Thesaurus of Slang: A Complete Reference Book of Colloquial Speech § 405, at 372-73 (1942).
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behavior. Simply put, gender stereotypes apply not just to traditional notions of appropriate dress or hobbies or other behavior for men and women, but also to traditional notions of the types of intimate relationships appropriate for men and women. An employer who fires a male employee for wearing feminine clothes is acting on the same bias against nonconformity as an employer who fires a male employee for putting up a picture of his male spouse. Put another way, heterosexuality is itself is a gender stereotype that employers may not impose—any more than they may impose any other gender stereotype—without violating Title VII.
B. Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination Because It Treats Similarly Situated Men and Women Differently. Discrimination on the basis of sexual orientation also
impermissibly discriminates on the basis of sex for the closely related reason that it ascribes different consequences to men and women who engage (or desire to engage) in the same conduct. Because such discrimination reacts to a person’s choice of intimate relationships “in a manner which but for that person’s sex would be different,” Manhart, 435 U.S. at 711 (quotation marks omitted), it violates Title VII.
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Specifically, if two hypothetical employees, a man and a woman, are each in an intimate relationship with another woman but only the female employee is fired for this relationship, it is plain that the woman’s treatment “would have been different” but for her sex. Christiansen, 852 F.3d at 203 (Katzmann, C.J., concurring). As Hively likewise observed, the lesbian plaintiff there had identified “paradigmatic sex discrimination” by alleging that “if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same,” her employer “would not have refused to promote her and would not have fired her.” 853 F.3d at 345. Because sexual-orientation discrimination thus visits consequences for behavior on individuals that they would not suffer if they were of the opposite sex, it is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2, in violation of Title VII.
This and other courts have long recognized that penalizing an individual because of an interracial relationship impermissibly discriminates on the basis of race because it punishes conduct that would be permissible if the actor were of a different race. A half-century ago, in Loving v. Virginia, the Supreme Court held that anti-miscegenation laws discriminate on the basis of race in violation of the Equal Protection
13

Clause by outlawing certain relationships (i.e., marriages) with a person of a different race. See 388 U.S. 1, 7-12 (1967). Along similar lines, this Court has more recently upheld claims of race discrimination under Title VII based on allegations that an individual was penalized because of an interracial relationship. As the Court explained in Holcomb v. Iona College, “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race”—specifically, because of the fact that the employee is of a different race from his or her partner. 521 F.3d 130, 139 (2d Cir. 2008); accord Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”).
Because discrimination based on the race of the partners in a relationship constitutes race discrimination, it follows that discrimination based on the sex of such partners constitutes sex discrimination. In each case, people are subject to adverse treatment because of their intimate associations with members of a particular race or sex; they
14

therefore suffer discrimination on the basis of race or sex. “[I]f it is race discrimination to discriminate against interracial couples, it is sex discrimination to discriminate against same-sex couples.” Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 349 (Title VII “draws no distinction, for this purpose, among the different varieties of discrimination it addresses”). The EEOC has come to the same conclusion, observing that “an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Baldwin, 2015 WL 4397641, at *6 (emphasis omitted). This reasoning further reinforces that discrimination on the basis of sexual orientation is discrimination “because of . . . sex,” and thus is prohibited by Title VII, 42 U.S.C. § 2000e-2. See also Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring) (noting “it makes little sense to carve out same-sex relationships as an association” that Title VII does not protect, in light of recent Supreme Court decisions finding a constitutional right to samesex marriage).
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C. Sexual-Orientation Discrimination Is Ordinarily Indistinguishable from Other Forms of Sex Discrimination Prohibited by Title VII. Both practical and judicial experience confirm that sexual-
orientation discrimination is merely a variant of sex discrimination. Indeed, the two types of discrimination are in practice often indistinguishable.
For example, decisions from this Court and others have attempted to draw a line between noncognizable Title VII claims of sexualorientation discrimination, and cognizable Title VII claims by gay, lesbian, or bisexual employees for discrimination on the basis of nonconformity with sex stereotypes. The problem, as courts have repeatedly recognized, is that both types of claim often stem from acts of abuse or harassment that target employees for failing to conform to traditional gender stereotypes in a number of ways, and it is difficult if— not impossible—to disentangle gender stereotyping involving an employee’s publicly observable behavior from gender stereotyping involving an employee’s private intimate associations.
As the Seventh Circuit remarked in a pre-Hively decision, “a perception of homosexuality itself may result from an impression of
16

nonconformance with sexual stereotypes.” Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003). Judge Posner observed in Hamm that “[h]ostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter,” and that attempting to differentiate these forms of hostility is “beyond the practical capacity of the litigation process.” Id. at 1067 (Posner, J., concurring). Similarly, the majority opinion observed that a “homophobic epithet like ‘fag’” may be “as much of a disparagement of a man’s perceived effeminate qualities as it is of his perceived sexual orientation,” making it impossible to “rigidly compartmentalize the types of bias that these types of epithets represent.” Id. at 1065 n.5 (majority op.).
Examples from other cases reinforce the profound practical difficulty of attempting to parse whether bias is motivated by an employee’s sexual orientation or his sex. For instance, in Prowel v. Wise Business Forms, Inc., a gay man who had a high voice and exhibited certain other stereotypically feminine traits suffered harassment that included being called “Princess” and “Rosebud” (as well as “fag” and “faggot”) and having a “a pink, light-up, feather tiara with a package of
17

lubricant jelly” left at his workstation. 579 F.3d 285, 287-88, 291-92 (3d Cir. 2009). The Third Circuit allowed plaintiff’s Title VII claims to proceed on a sex-stereotyping theory, but noted that it was “possible that the harassment” he identified “was because of his sexual orientation, not his effeminacy,” id. at 292, and observed that, “[a]s this appeal demonstrates, the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw,” id. at 291.
By contrast, in Spearman v. Ford Motor Co., the Seventh Circuit held (pre-Hively) that a gay man did not have a viable Title VII claim where, among other things, he was called a “bitch” and publicly compared to the drag performer RuPaul; even though he had not disclosed his sexual orientation at work, the court deemed the harassment attributable solely to his coworkers’ hostility to his “apparent homosexuality.” 231 F.3d 1080, 1082 n.1, 1085-86 (7th Cir. 2000). Similarly, in Dawson, this Court upheld the grant of summary judgment against a lesbian plaintiff with a stereotypically masculine appearance where, among other things, the plaintiff’s coworkers accused her of “wearing her sexuality like a costume” and repeatedly called her by the name “Donald.” 398 F.3d at 222 (quotation marks omitted). In holding
18

these comments insufficient to raise a triable issue, this Court observed
that they provided “ambiguous support for a gender stereotyping claim”
because they could be interpreted as statements about the plaintiff’s
sexuality (which would not be actionable) or her appearance (which
would), or both.2 Id. at 221-22.
As these cases illustrate, real-world examples of discrimination
typically frustrate any effort to “rigidly compartmentalize” types of bias,
Hamm, 332 F.3d at 1065 n.5, distinguishing animus against
homosexuality, on the one hand, from animus against other types of
gender nonconformity, on the other. Social-science research confirms that
both types of animus will often be present together. “Social psychologists
have documented that hostility toward homosexuals is linked to other
traditional, restrictive attitudes about sex roles.” Koppelman, supra, at
237; see also id. at 238-39 (collecting studies); Carol M. Doyle et al.,
2 See also, e.g., Howell v. North Central Coll., 320 F. Supp. 2d 717, 723 (N.D. Ill. 2004) (noting inconsistencies in Seventh Circuit’s preHively case law and recognizing difficulty posed by hypothetical case of “a female plaintiff exhibiting masculine traits” subject to “a full complement of lesbian epithets”); Centola, 183 F. Supp. 2d at 410 (coworkers’ act of placing “a picture of Richard Simmons ‘in pink hot pants’” in plaintiff’s work area could show that they deemed him “impermissibly feminine” or gay, or both).
19

Perceptions of Same-Sex Relationships and Marriage as Gender Role Violations: An Examination of Gendered Expectations (Sexism), 62 J. of Homosexuality 1576, 1592 (2015) (“Our findings extend the previous research by demonstrating that it is the same-sex relationship behaviors themselves, not only the presumed cross-gender characteristics of gays and lesbians, that violate prescribed gender role expectations.”). Indeed, some historians believe that “[t]he modern stigmatization of homosexuals” developed alongside a sexist backlash to the growing trend of gender equality, with both types of animus—against homosexuality and against women—representing a reaction to the upending of traditional masculine roles. Koppelman, supra, at 240.
Gay, lesbian, and bisexual individuals’ personal experiences with discrimination similarly demonstrate the degree to which sex discrimination and sexual-orientation discrimination conflate. For example, long before gay boys engage in same-sex activity, many are “taunted and teased for ‘acting queer’ or ‘looking like a faggot’ simply because they are not as aggressive or masculine-appearing as other boys”—harassment that “demonstrates the sex stereotyping roots of antigay animus.” Anthony E. Varona and Jeffrey M. Monks, En/Gendering
20

Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 67-68, 86 (2000). In one particularly striking example, the plaintiff in Montgomery v. Independent School District No. 709 was subjected to severe harassment because of his perceived sexual orientation starting from the time he was just five years old. See 109 F. Supp. 2d 1081, 1084 (D. Minn. 2000) (discussed in Varona and Monks, supra).
Such harassment forcefully demonstrates the “degree to which sexual orientation is commingled in the minds of many with particular traits associated with gender.” Christiansen, 852 F.3d at 205-06 (Katzmann, C.J., concurring). That commingling reinforces the impracticality of differentiating sexual-orientation discrimination from sex discrimination, and provides further support for interpreting Title VII’s ban on discrimination “because of . . . sex” to include discrimination because of sexual orientation.
21

D. Congressional Inaction Does Not Compel a Different Reading of Title VII. The absence of the term “sexual orientation” from Title VII sheds
little, if any, light on the question presented here. Since sexualorientation discrimination is a form of discrimination “because of . . . sex,” there is no need for a separate statutory reference to sexual orientation.
To be sure, state antidiscrimination laws often expressly list sexual orientation, alongside sex, as an impermissible basis of disparate treatment. See, e.g., Conn. Gen. Stat. § 46a-81c; N.Y. Exec. Law § 296; Vt. Stat. Ann. tit. 21, § 495. But many of these provisions were adopted years or decades ago, at a time when same-sex intimate contact was outlawed in many States, and other forms of sexual-orientation discrimination were generally assumed to be permissible both legally and socially. For instance, all three of the amici States adopted measures expressly barring employment discrimination based on sexual orientation before 2003,3 when the Supreme Court overruled its holding in Bowers v. Hardwick that States were free to “criminalize homosexual
3 Connecticut’s measure dates from 1991, Vermont’s from 1992, and New York’s from 2002.
22

sodomy.”4 See 478 U.S. 186, 190 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). That legislatures and courts previously had “made assumptions defined by the world and time of which” they were “a part,” Obergefell, 135 S. Ct. at 2598, does not mean that this Court is bound by such assumptions today—including the assumption that sexualorientation discrimination is distinct from, rather than a form of, sex discrimination. See Hively, 853 F.3d at 347 (criticizing argument that sexual-orientation discrimination is different from sex discrimination for “assuming the conclusion it sets out to prove”).5
There also is no significance to the fact that Congress may not have been focused on sexual-orientation discrimination when it enacted Title VII. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court held that Title VII extended to the novel context of male-on-male sexual
4 This Court’s decision in Symonton, issued in 2000, comes from the same era.
5 See also Bolling v. Sharpe, 347 U.S. 497, 498-500 (1954) (holding that racially segregated public schools in District of Columbia violated Constitution); cf. Br. for Resp. at 12-13, Bolling, 347 U.S. 497 (No. 8), 1952 WL 47280 (arguing that such segregation was permissible based on Congress’s provisions for segregated schools contemporaneously with adoption of Fourteenth Amendment).
23

harassment despite acknowledging that such harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” 523 U.S. 75, 79-80 (1998). As the Court explained, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Id.
This conclusion is not altered by Congress’s subsequent failures to amend Title VII to add “sexual orientation” discrimination as a distinct category of impermissible discrimination. As the Supreme Court has repeatedly emphasized, “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress,” and it is a “particularly dangerous ground on which to rest an interpretation of a prior statute” when such history concerns a proposal that “does not become law.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quotation marks omitted). “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Id. (quotation marks omitted); see also Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) (“‘It is at best treacherous to find in congressional silence alone the adoption of a
24

controlling rule of law.’” (quoting Girouard v. United States, 328 U.S. 61, 69 (1946))); United States v. Price, 361 U.S. 304, 310-11 (1960) (“[N]onaction by Congress affords the most dubious foundation for drawing positive inferences.”). Indeed, there are “idiosyncratic reasons that many bills do not become law, and those reasons may be wholly unrelated to the particular provision of a bill that a court is assessing.” Christiansen, 852 F.3d at 206 (Katzmann, C.J., concurring).
For example, as the Seventh Circuit observed in Hively, the federal agency “most closely associated with” Title VII, the EEOC, has already concluded that “sex” includes “sexual orientation” for purposes of Title VII, and Congress has not acted to “to carve sexual orientation out of the statute.” 853 F.3d at 344. Moreover, Congress’s separate references to “sex” and “sexual orientation” in the Violence Against Women Act and federal hate crimes statute could reflect a “belt and suspenders” approach despite significant overlap between the two concepts. See id. Thus, as the Seventh Circuit concluded, “we have no idea what inference to draw from congressional inaction or later enactments.” Id. And, given the strength of the considerations in favor of reading “sex” to include “sexual orientation,” the “fact that the enacting Congress may not have
25

anticipated a particular application” of Title VII’s ban on sex-based discrimination “cannot stand in the way” of the statute “on the books.” Id. at 344-45.
* * * In sum, Title VII’s prohibition of employment discrimination “because of . . . sex” encompasses sexual-orientation discrimination for at least two closely related reasons: such discrimination punishes individuals for their failure to adhere to sex stereotypes about the intimate relationships that men and women should have; and such discrimination impermissibly punishes individuals for relationships that would be acceptable if they were of the opposite sex. Both practical and judicial experience confirm that sexual-orientation discrimination is often indistinguishable from sex discrimination. By contrast, a constricted reading of Title VII that would permit sexual-orientation discrimination would ignore the central role that an employee’s sex plays when such discrimination occurs. See Hively, 853 F.3d at 350 (recognizing the “considerable calisthenics” required to “remove the ‘sex’ from ‘sexual orientation’”). This Court should accordingly interpret Title VII to prohibit sexual-orientation discrimination.
26

POINT II READING TITLE VII TO EXCLUDE SEXUAL-ORIENTATION DISCRIMINATION WOULD PREJUDICE IMPORTANT STATE INTERESTS AND LIMIT ENFORCEMENT ACTIVITIES AGAINST HARMFUL ACTS OF DISCRIMINATION A correct reading of Title VII to encompass sexual-orientation discrimination is important for the amici States to ensure that their residents receive the full panoply of legal protections against harmful discrimination. Because the line between sexual-orientation discrimination and other types of sex discrimination is so elusive (and very frequently impossible to draw, see supra at 16-21), a rule that purports to exempt the former from Title VII makes gay, lesbian, and bisexual employees peculiarly vulnerable. Under such a rule, employers may defend against Title VII claims by asserting that discriminatory conduct—such as the use of homophobic epithets—was actually based on an employee’s (actual or perceived) sexual orientation rather than his or her failure to conform to sex stereotypes. Reading Title VII in this way exposes the residents of amici States, and the States themselves, to serious harm and improperly removes the protections that Title VII was intended to establish against discrimination “because of . . . sex.” Recognizing that Title VII’s ban on sex discrimination includes sexual-
27

orientation discrimination, meanwhile, means the addition of important federal remedies and resources to the amici States’ efforts to combat invidious discrimination and its attendant harms.
A. Sexual-Orientation Discrimination Harms the Amici States and Their Residents. More than 800,000 adults residing in the amici States identify as
lesbian, gay, bisexual or transgender (LGBT), with a greater proportion of adults identifying as LGBT in Vermont than in any other State, and with the New York City metropolitan area having a larger gay and lesbian population than any other in the country.6 The amici States have important interests in the welfare of these residents, extending “beyond mere physical interests to economic and commercial interests,” and to an interest in protecting them “from the harmful effects of discrimination.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982) (calling this interest “substantial”).
6 See Movement Advancement Project, LGBT Populations (June 22, 2017); Williams Inst., LGBT Data and Demographics (2017); see also Gallup, Inc., Vermont Leads States in LGBT Identification (Feb. 6, 2017); David Leonhardt, New York Still Has More Gay Residents Than Anywhere Else in U.S., N.Y. Times, Mar. 23, 2015. URLs for sources available online are provided in the table of authorities.
28

Unfortunately, such discrimination continues to be a pervasive aspect of life for LGBT people, with resulting harms to them and the amici States. Recent studies show that sexual minorities face “widespread and continuing employment discrimination,” resulting in a lack of promotions, lower wages, and in some cases, the loss of employment.7 For instance, a 2014 study revealed that between 11 and 28 percent of LGBT workers nationwide reported losing a promotion because of their sexual orientation.8 A 2008 survey found that 16% of respondents had lost a job at some point in their lives because of their sexual orientation.9 The same survey found that more than 40% of all people identifying as lesbian, gay, or bisexual had experienced at least one instance of sexual-orientation discrimination in employment at some
7 Brad Sears and Christy Mallory, Documented Evidence of Employment Discrimination and its effects on LGBT People 1,4 (Williams Inst. 2011).
8 Sarah McBride et al., We the People: Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections 7-8 (Ctr. for Am. Progress 2014).
9 Sears & Mallory, supra, at 4.
29

point in their lives.10 That number rose to 56% for those who were open
about their sexual orientation in the workplace.11
This employment discrimination produces tangible harms to the
victims of such treatment. According to the results of a dozen studies, gay
men suffer a wage gap resulting in between 10% and 32% of comparable
heterosexual men’s earnings.12 LGBT workers overall, and members of
ethnic or racial minorities in particular, experience unemployment at a
higher rate than other workers.13 And rates of poverty14 and
homelessness15 for LGBT people significantly exceed those of the
population as a whole.
10 Id. 11 Id. 12 Id. at 14. 13 Sarah McBride and Katie Miller, High Stakes: LGBT Americans Cannot Afford to Lose Unemployment Insurance (Ctr. for Am. Progress Jan. 14, 2014); Movement Advancement Project, Ctr. for Am. Progress, and Human Rights Campaign, A Broken Bargain: Discrimination, Fewer Benefits, and More Taxes for LGBT Workers (Condensed Version), at i, 3, 4-5 (2013). 14 See Randy Albelda et al., Poverty in the Lesbian, Gay, and Bisexual Community, at i (Williams Inst. 2009). 15 See HUD Exchange, LGBT Homelessness (“Members of the LGBT community are more likely to become homeless, and once homeless, more
30

The costs of such negative outcomes do not fall on the victims of sexual-orientation discrimination alone. In particular, they extend to the amici States in several ways relevant here.
First, economic harm to victims of sexual-orientation discrimination often translates into an increased burden on public benefits programs. For instance, the loss of private healthcare coverage often attends the loss of stable employment. This reality, combined with decreased economic opportunities for LGBT people due to discrimination, creates a scenario where LGBT people disproportionately face financial insecurity and therefore must rely on state-sponsored cash assistance, healthcare coverage, and other forms of public assistance.16
Second, disadvantaging people for reasons unrelated to their qualifications or job performance harms productivity and limits employers’ ability to recruit and retain the most talented workforce
likely to endure discrimination and harassment that extends their homelessness.”).
16 See M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community 21-24 (Williams Inst. 2013); cf. Jody L. Herman, The Cost of Employment and Housing Discrimination Against Transgender Residents of New York 1 (Williams Inst. 2013) (noting comparable effects of discrimination against transgender people).
31

possible. This dynamic both harms the States in their capacities as
employers and produces a drag on the States’ economies and fiscs.
Data demonstrate that hostile and discriminatory work
environments compromise employee efficiency, resulting in absenteeism,
lower productivity, and “a less motivated, less entrepreneurial, and less
committed workforce.”17 For example, a 2013 report concluded that
“[f]irms that implemented LGBT-friendly policies experienced increases
in firm value, productivity, and profitability. Firms that discontinued
gay-friendly policies found they experienced decreases in the same
performance measures.”18
17 Crosby Burns et al., Gay and Transgender Discrimination in the Public Sector: Why It’s a Problem for State and Local Governments, Employees, and Taxpayers 19 (Ctr. for Am. Progress & AFSCME 2012); see also Crosby Burns, The Costly Business of Discrimination: The Economic Costs of Discrimination and the Financial Benefits of Gay and Transgender Equality in the Workplace (Ctr. for Am. Progress 2012).
18 Catalyst Information Ctr., Why Diversity Matters 6 (2013); see also M.V. Lee Badgett et al., The Business Impact of LGBT-Supportive Workplace Policies 23 (Williams Inst. 2013) (“[T]he more robust a company’s LGBT-friendly policies, the better its stock performed over the course of four years (2002-2006), compared to other companies in the same industry over the same period of time.”).
32

And, as 68 companies, including some of the country’s largest, noted last year in an amicus brief supporting equality for transgender people, policies protecting LGBT employees offer tangible advantages for building and maintaining a strong workforce.19 In terms of recruitment, both LGBT and non-LGBT workers prefer to work for employers and in communities with such protections. A 2014 study found that members of the “creative class” (roughly 50 million people including scientists, engineers, and entrepreneurs; researchers and academics; architects and designers; artists and entertainers; and professionals in business, media, management, healthcare, and law) use diversity as a proxy for determining whether a city would provide a welcoming home.20 Another report found that individuals are increasingly likely to migrate from ideologically unfriendly communities to those that they perceive as more closely aligned with their beliefs.21 Moreover, in terms of retention, the
19 Amicus Curiae Br. by 68 Companies Opposed To H.B. 2 & in Support of Pl.’s Mot. for P.I., United States v. North Carolina, No. 1:16cv-425 (M.D.N.C. July 8, 2016), ECF No. 85-1.
20 See Human Rights Campaign Found., 2014 Municipal Equality Index: A Nationwide Evaluation of Municipal Law 6 (2014).
21 See Matt Motyl et al., How Ideological Migration Geographically Segregates Groups, 51 J. Experimental Soc. Psychol. 1, 11-12 (2014).
33

stress of job-related discrimination and harassment causes LGBT workers to change or quit jobs, which has significant economic consequences for employers: one recent study found that “[i]t costs anywhere between $5,000 and $10,000 to replace a departing hourly worker and between an estimated $75,000 and $211,000 to replace an executive-level employee.”22
In sum, employment discrimination on the basis of sexual orientation not only harms the victims of such discrimination, but also hurts employers and impairs the economies and fiscs of the amici States. A proper understanding of Title VII to prohibit sexual-orientation discrimination is critical to counteract such discrimination.
B. Reading Title VII to Prohibit Sexual-Orientation Discrimination Will Provide a Valuable Supplement to the Amici States’ Efforts to Combat Invidious Discrimination. As noted above (see supra at 22), the amici States have already
adopted laws barring sexual-orientation discrimination in the workplace. But Title VII complements and extends the protections offered by state
22 Burns et al., supra, at 19. 34

law in important ways that make it a crucial adjunct to the amici States’ efforts to root out invidious discrimination.
For instance, Title VII offers protection against discrimination by certain employers that are not generally subject to state and local antidiscrimination laws, including federal employers and certain multistate bodies. For these entities, federal law provides the sole remedy against employment discrimination. See Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998) (federal employers); Dezaio v. Port Auth. of N.Y. & N.J., 205 F.3d 62, 65-66 (2d Cir. 2000) (Port Authority of New York and New Jersey).
Furthermore, Title VII coverage offers substantial additional resources for the public enforcement of antidiscriminatory commands, even where the same command is contained in both state and federal law and an employer is subject to both (as most employers are). In particular, Title VII triggers the jurisdiction of a federal enforcer, the EEOC, that can work in parallel and coordinate with state agencies to prevent, investigate, and remedy invidious discrimination.
The experience of the amici States demonstrates the benefits of such overlapping federal-state enforcement authority. In 2015, for
35

instance, the EEOC and the New York State Office of the Attorney
General reached a multimillion-dollar joint settlement agreement with
Consolidated Edison Company of New York resolving allegations of
sexual harassment at the company, among other acts of discrimination.23
While sexual-orientation discrimination was not a part of this joint effort
(in part because the settlement was reached only two months after the
EEOC interpreted Title VII to prohibit such discrimination), this case
demonstrates the value to the States of having a federal enforcer as a
partner to investigate and remedy employment discrimination.24
In the context of private enforcement actions, Title VII also offers
victims of discrimination broader remedies than may be available under
state law. For instance, New York’s Human Rights Law does not allow a
23 See Con Edison Settles Sexual Harassment Lawsuit for $3.8 Million, ABC Eyewitness News (New York, N.Y.) (Sept. 9, 2015).
24 The federal government has similarly recognized in the arena of consumer protection the value of joint federal-state enforcement, which has the virtue of “bringing more allies to our fight.” 153 Cong. Rec. H16,882 (daily ed. Dec. 19, 2007) (statement of Rep. Rosa DeLauro) (discussing state and federal authority to enforce federal Consumer Product Safety Improvement Act); see also 15 U.S.C. § 1477 (allowing state attorneys general to bring federal enforcement actions for violations of the Act affecting their States or their States’ residents).
36

prevailing plaintiff to recover punitive damages, but Title VII does. See 42 U.S.C. § 1981a(b)(1). Title VII thus offers an additional incentive to employers to eliminate discrimination, and thereby may foster more effective enforcement of antidiscriminatory norms than state law would alone.
Thus, although the amici States have already adopted regimes for protecting their gay, lesbian, and bisexual residents from employment discrimination, the recognition that Title VII provides overlapping protection will contribute substantially to the States’ efforts to end such discrimination.
37

CONCLUSION This Court should hold that Title VII’s bar on sex-based

employment discrimination includes discrimination based on sexual

orientation.

Dated: New York, New York June 26, 2017

Respectfully submitted,

GEORGE JEPSEN Attorney General State of Connecticut
55 Elm Street Hartford, CT 06106 860-808-5318

ERIC T. SCHNEIDERMAN Attorney General State of New York
By: , /s/ Andrew W. Amend . ANDREW W. AMEND Senior Assistant Solicitor General

THOMAS J. DONOVAN, JR. Attorney General State of Vermont
109 State Street Montpelier, VT 05609 802-828-5500

BARBARA D. UNDERWOOD Solicitor General
STEVEN C. WU Deputy Solicitor General of Counsel
JORDAN GOLDBERG Law Intern

120 Broadway, 25th Floor New York, NY 10271 212-416-8020

38

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, Oren L. Zeve, an attorney in the Office of the Attorney General of the State of New York, hereby certifies that according to the word count feature of the word processing program used to prepare this brief, the brief contains 6,998 words and complies with the type-volume limitations of Rule 32(a)(7)(B).

. /s/ Oren L. Zeve

.

Oren L. Zeve

 
 Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page1 of 97
15-3775

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS COINDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA,

— against —

Plaintiffs-Appellants,

ALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD,

Defendants-Appellees.

En Banc Rehearing of the Panel Opinion Reported at 855 F. 3d 76 (2d Cir. 2017)

APPELLANT’S BRIEF & SPECIAL APPENDIX (corrected)

GREGORY ANTOLLINO, ESQ. Gregory Antollino Attorney for Plaintiff-Appellant 275 Seventh Ave., Suite 705 New York, New York 10001 (212) 334-7397

BERGSTEIN & ULLRICH, LLP Stephen Bergstein, Of Counsel Attorney for Plaintiff-Appellant 5 Paradies Lane New Paltz, New York 12561 (845) 469-1277
June, 2017

Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page2 of 97
TABLE OF CONTENTS ISSUE............................................................................................................................ 1 JURISDICTION .......................................................................................................... 1 PROCEDURAL BACKGROUND............................................................................. 2 FACTS .......................................................................................................................... 8
1. The Escapade. ................................................................................................... 8 2. Events at the Dropzone: Frame by Frame. .................................................. 11 3. Pretext, Disparate Treatment and Further Evidence of Animus............... 14 SUMMARY OFARGUMENT ................................................................................. 18 STANDARD OF REVIEW....................................................................................... 26 ARGUMENT ............................................................................................................. 26 I. The Question Is far from Academic ................................................................. 26 II. Holcomb v. Iona College Abrogated Simonton ............................................... 32 III. Same-Sex Attraction Is High on the List of Non-Conforming Sex Stereotypes. To Identify Openly as LGBT, when One May Otherwise Cover as Heterosexual, Is Probably Even Higher. ............................................................. 34
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Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page3 of 97
IV. Sexual Orientation Discrimination Is Sex Discrimination Per Se............... 37 V. Simonton Has Lost Its Moorings. Legislative Inaction Is Uninformative, and an Improper Manner in which to Divine Legislative History. .......................... 39
A. Simonton’s Holding Was Limited to One Plaintiff and the Cases upon which It Was Grounded Have Lost their Influence....................................................... 39 B. Supporting any Holding on Legislative Inaction Is Improper. The Text of Title VII as Interpreted by the Supreme Court Governs. ............................................ 43 VI. Are there Constitutional Implications in the Question Presented? Yes…..…46 CONCLUSION .......................................................................................................... 48 CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) ....................................... 50 SPECIAL APPENDIX AND ITS TABLE OF CONTENTS ................................. 51
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Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page4 of 97
TABLE OF AUTHORITIES Cases Abrams v. Dep’t of Pub. Safety, 764 F.3d 244 (2d Cir. 2014) ......................................... 7 Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936) ................................................ 46 Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (July 15, 2015) .................... 7, 26, 32, 37 Bethesda Lutheran Homes & Servs. v. Born, 238 F.3d 853 (7th Cir. 2001) ................. 37 Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) ......................... 27 Bland v. Burwell, 2016 U.S. Dist. LEXIS 2032 (W.D. Mo. Jan. 8, 2016). ................... 21 Boutillier v. Hartford Pub. Schs, 221 F. Supp. 3d 255 (D. Conn. 2016)........... 23, 32, 46 Bowers v. Hardwick, 478 U.S. 186 (1986) .................................................................... 18 Brown v. GSA, 425 U.S. 820 (1976) .............................................................................. 28 Centola v. Potter, 183 F.Supp.2d 403 (D. Mass. 2002)........................................... 22, 34 Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ........................ passim Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y. 2016) ................ 22 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978). ........ 25 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................. passim De Cintio v. Westchester Cty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986)......................... 20 DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) ................................ 39 Evans v. Ga. Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017) ..................................... 21, 24 Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015).................................... 40
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Graham Cty. Soil & Water Cons. Dist. v. U.S. ex rel. Wilson, 559 U.S. 280 (2010) .... 45 Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147 (1950)............ 32 Hamm v. Weyauwega Milk Prods., 332 F.3d 1058 (7th Cir. 2003)............................... 35 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)............................................................ 38 Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017)..................... passim Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016) ........................................ 33 Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008). ............................................. passim Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) ...... 36 Kirchberg v. Feenstra, 450 U.S. 455 (1981). ................................................................ 19 Lawrence v. Texas, 539 U.S. 558 (2003) ....................................................................... 30 Macy v. Holder, 2012 EEOPUB LEXIS 1181 (E.E.O.C. 2012).................................... 40 Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015)..................................................... 27 McDonnell Douglas v. Green, 411 U.S. 792 (1973) ....................................................... 7 Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005) ................................. 27 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). .......................................... 44 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................... 26, 33, 46 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)................. 35, 44, 45, 47 Parr v. Woodmen of the World Life Ins.Co., 791 F.2d 888 (11th Cir. 1986) ................ 44 Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ..................................... 46 Philpott v. New York, 2017 U.S. Dist. LEXIS 67591 (S.D.N.Y. 2017)................... 23, 42 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................... passim
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Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) ..................................... 35 Rivera v. Heyman, 157 F.3d 101 (2d Cir. 1998)............................................................ 28 Roberts v. UPS, Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015)......................................... 48 Sec. Plans, Inc. v. CUNA Mut. Ins. Soc’y, 769 F.3d 807 (2d Cir. 2014) ....................... 26 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ................................................... passim Skidmore v. Swift & Co., 323 U.S. 134 (1944) .............................................................. 40 Thompson v. N. Am. Stainless, 562 U.S. 170 (2011) ..................................................... 32 Thoreson v. Penthouse Int'l, 80 N.Y.2d 490 (1992). ..................................................... 27 Tory v. Cochran, 544 U.S. 734 (2005) .......................................................................... 46 Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984)...................................... 39 United States v. Rubin, 609 F.2d 51 (2d Cir. 1979)....................................................... 41 University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) .... 8 Vasquez v. Empress Ambulance Serv., 835 F.3d 267 (2d Cir. 2016)............................... 5 Vickers v. Fairfield Med. Ctr., 454 F.3d 757 (6th Cir. 2006) ........................................ 27 Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989) ....................... 20 Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).................................................... 2 Other Authorities Al Franken, Giant of the Senate, 2017..................................................................... 25, 29 Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.
L. Rev. 715 (2014)...................................................................................................... 36 EEOC, Amicus Brief, Burrows v. The College of Central Florida (11th Cir.) .............. 40
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Centers for Disease Control Statistics on HIV Transmission ........................................ 31 Constitution of The Republic of South Africa, 1996 as amended, Chapter 2, § 9(c). ... 29 D.L. King, On the Down Low: A Journey into the Lives of ‘Straight’ Black Men Who
Sleep with Men, 2005................................................................................................. 31 Edwin Cameron, Justices: A Personal Account, 2014............................................. 29, 30 Governing.com............................................................................................................... 28 Guido Calabresi, A Common Law for the Age of Statutes, 1982 ................................. 24 George Bernard Shaw, Back to Methuselah, p. 7 (1949)................................................. 1 Lewis Carroll, Alice’s Adventures in Wonderland, 1865................................................ 9 Michaelangelo Signorile, It’s Not Over, 2015................................................... 30, 31, 47 New York Pattern Jury Instructions—Civil, PJI 9:1, Employment Discrimination—
Circumstantial Evidence............................................................................................... 7 New York Times, “Table for Three,” November 14, 2015 ........................................... 19 Omar G. Encarnación, “The Global Backlash Against Gay Rights,” Foreign Affairs,
May 2, 2017................................................................................................................ 30 Oscar Wilde, “The Decay of Lying,” Intentions, 1889.................................................. 21 Pierre Leval, Madison Lecture, 2006 NYU Law Review 81:1249 ................................. 41 Richard Posner, Divergent Paths: The Academy and the Judiciary, 2016 .............. 18, 24 Richard Socarides, The New Yorker, “North Carolina and the Gay-Rights Backlash,”
March 28, 2016........................................................................................................... 30 Sylvia Law, Homosexuality and the Social Meaning of Gender,” 1988 Wisc. L. Rev.
187 .................................................................................................................. 19, 20, 48
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Constitutional Provisions Equal Protection Clause of the Constitution, Amendment XIV .................................... 48 U.S. Constitution, Art. VI, cl. 2. .................................................................................... 45
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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
x -------------------------------------------------- x MELISSA ZARDA & WILLIAM MOORE, EXECUTORS,
ESTATE OF DONALD ZARDA, Plaintiff-Appellant, -against-
ALTITUDE EXPRESS & RAYMOND MAYNARD, Defendants-Appellees
x -------------------------------------------------- x ISSUE
Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?
We address the question as the Court has ordered, and answer emphatically Yes. But to paraphrase George Bernard Shaw, when some might ask, “Does it?”, we might sometimes look to things that never were and ask instead, “Does it not?”1
JURISDICTION
The Court has subject-matter jurisdiction in that we present a federal question, 28 U.S.C. § 1331 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended, 42 U.S.C. § 1981a. The district court dismissed plaintiff Donald Zarda’s sex discrimination claim on summary judgment. 1 Back to Methuselah, Act I, Selected Plays with Prefaces, vol. 2, p. 7 (1949).
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However, he also met the requirements of diversity jurisdiction, 28 U.S.C. § 1332. After the trial wherein the substituted plaintiff Estate lost under New York Executive Law § 296, Melissa Zarda and William Moore as Co-Independent Executors timely appealed from the October 28, 2015 judgment of the District Court. Appellate jurisdiction is thus proper under 28 U.S.C. § 1291.
The three-judge Panel (Jacobs, Sack and Lynch, JJ.) affirmed the District Court on April 28, 2017. Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017). SPA.54-64 (Special Appendix, attached). The Estate – to which we wish to refer as “Plaintiff” or “Donald Zarda” – timely petitioned for en banc review on May 2, 2017. On May 25, 2017, the active judges of this Circuit ordered this rehearing. SPA.54-55.
PROCEDURAL BACKGROUND In 2010, Donald Zarda filed his charge with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging sex discrimination as a victim of sex stereotyping as a violation of Title VII. After securing his right to sue, Zarda initiated litigation the same year against defendant Raymond Maynard, the sole owner of Altitude Express, doing business as “SDLI” or “Skydive Long Island” – the geographic descriptive being the situs of the lawsuit (Bianco, J., presiding in the Eastern District of New York, docket 10-4334). Plaintiff’s Title VII claim alleged he was a victim of discrimination as gender non-conforming: often mistaken as
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straight, Zarda readily corrected the assumption. He also wore a jaunty pink cap and painted his toenails in comparable delicate colors. JA.398-99.
The state claim alleged that Maynard fired Zarda because of his sexual orientation. The incident giving rise to Zarda's termination was a third-party accusation that Zarda had flirted with a young female skydive passenger Rosana Orellana, who had embarked upon an adventure in the sky with Zarda as her instructor. Someone made an assertion in the presence of her boyfriend, David Kengle, to the effect that “I bet you didn’t expect your girlfriend to be strapped up to another guy!” No one challenged that the assertion was made in jest, as it had been many, many times before. As skydive instructor – or, officially, “Tandem Master” – Zarda was required to protect Orellana not only with his hands, but zip his torso to hers, with straps attaching at the hips. Passengers embarking on this kind of ride ris and therefore must remain at ease as they climb into a mini-aircraft, doors unguarded, ascend towards the firmament with the assistance of a parachute, then drift slowly towards earth. At first, adrenaline kicks in, then the tandem master pulls the ripcord and instructor and student alight upwards. In seconds, they reach a speed where the force of air resistance, pushing further upward until the torque balances with gravity, which pulls them downward. For a few moments, with the help of the parachute, there is no acceleration towards earth. The tandem pair fall at a slow, steady speed, and, with hope, land peacefully after enjoying the cool, calming influence of the landscape.
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Only certain people choose this activity, perhaps without expectations. When these chosen climb into the rickety plane and get closer towards the fundamentally dangerous point of inflection – tumbling into the sky – the atmosphere must be simultaneously giddy but composed, tandem master in control. As Orellana was secured to Zarda, the third person exclaimed the weary workplace witticism: “I bet you didn’t think your girlfriend was gonna to be strapped to another guy!” JA.303.
Shortly after this fabricated mirth, Zarda sensed Orellana’s discreet disquiet. As they were in the sky, he outed himself as gay, because he suspected the cause of her perceived discomfort was the suggestion that, in taking Orellana so close to his person – as required – he was supplanting Kengle’s role as her protector. In fact, Zarda had no interest in Orellana and characterized himself as “100% gay.” JA.151. The photo and video evidence might signal snippets of her anxiety, but mostly it shows excitement. Nothing went wrong until Orellana told Kengle about Zarda’s outing himself later the same day. Kengle brooded over the weekend, then complained to Defendant-Appellee Maynard who immediately suspended Zarda, and docked his pay; he fired Zarda a week later.
Zarda alleged that, as male, even if gay, Maynard terminated his employment because of this disclosure; he then threw in as pretext an uninvestigated, dubious allegation that “Gay Don” (as he was known) was also fired because he improperly touched Orellana on the jump in the plane and up in the sky; the investigation
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consisted solely of a denial by Zarda.2 (His claim under the New York State Human Rights Law was sexual-orientation discrimination, as protected - with fewer remedies and a higher standard of proof as compared to Title VII – as codified by New York Executive Law § 296.)
Zarda was unguarded about his sexuality. He was an outlier, residing mostly in regions of the United States where men and women of the “Homosexual Profession” live their lives sotto voce – Kansas, Missouri, Texas (“homosexual” being a term somewhat out of favor). As he studied aviation, Zarda worked as a tandem master at “drop zones” like SDLI. A drop zone is an airstrip for miniplanes; self-selecting thrill-seekers fly to 13,000 feet, attached by zippers, harnesses and straps to instructors like Zarda. Before Orellana went up in the sky, however, and as required, she signed a binding consent with fee-shifting fangs, warning her of “close” contact before she engaged in what is an objectively perilous activity: she could not sue Altitude Express.
A videographer recorded her adventure, which ended well-choreographed and as picturesque as imaginable. See EA (Orellana Jump); JA.388-90. Kengle seemed to enjoy his experience too, EA (Kengle Jump), but later called SDLI to
2 The Court recently decided Vasquez v. Empress Ambulance Serv., 835 F.3d 267 (2d Cir. 2016), holding a negligent investigation of sexual harassment may be actionable in certain situations. We alerted Vasquez to the Panel, Letter, F.R.A.P. 28(j), 9/9/2016. JA.59. We don’t invoke Vasquez here, but will if this Court orders a remand. The issue of the bona fides of Maynard’s investigation, raised repeatedly below, is now an issue of law.
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complain about Zarda’s openness about being gay to Orellana; he also said that she said she was uncomfortable at her hips during the airlift and upwards journey into the sky. JA.504. Zarda was suspended immediately, and fought for a week for reinstatement with the support of his supervisor, Richard Winstock. Maynard nevertheless discharged him. Zarda recorded the termination meeting, and the recording preserved direct evidence of motive and disparate treatment. EA.3 (termination recording); JA.418-22.
Both sides moved for summary judgment. On March 28, 2014, the District Court granted defendants’ motion under Title VII, rejecting plaintiff’s evidence of colored masculinity as a sex stereotype and his analogy to Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009), which holds that taking adverse action after failing to investigate a complaint suggesting a sexual nuisance can be a form of sex stereotyping. (683-691; SPA.66-84.). The judge, however, upheld the state claim given the remaining diversity jurisdiction because “the disclosure of sexual orientation to Orellana was . . . in very close proximity to the termination. SPA.72. Additionally, another employee, Richard Winstock, had “disclosed his heterosexual[ity] during” jumps and suffered no adverse action (JA.682, SPA.72) – clear evidence of disparate treatment. “[T]he reason for the termination” later changed JA.681, SPA.72, making the evidence sufficient to question whether it “was because of the articulated nondiscriminatory reason. . . of a customer 3 Electronic appendix on disk, permitted by order on motion, Volume I of II.
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complaint about discomfort and being touched by the plaintiff during the
[parachute] jump or” his “sexual orientation, or the disclosure” thereof. Id. Sadly, Zarda died in a BASE jumping accident before trial.4 The Estate of
Donald Zarda moved to take over and the motion was granted with the intention of
reading Zarda's deposition at trial. Months before trial was already scheduled,
however, the EEOC handed down Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905
(July 16, 2015). Plaintiff moved to revive the Title VII claim based on this new
precedent (JA.708), wherein the EEOC explains how “sex” covers sexual
orientation by its language and logic, in various ways, citing a growing body of case
law. The lower court nevertheless held that Simonton v. Runyon, 232 F.3d 33 (2d
Cir. 2000), tied his hands, and would not defer to the EEOC as we had requested.
JA.716, SPA.64-65.
The trial on the New York claim commenced and the court, over objection, instructed the jury under a complicated substantive charge under state law.5 The
4 BASE jumping is wingsuit free-falling from Building, Antenna, Span – aerial bridges – and Earth, the last commonly fjords. Zarda gravitated to BASE jumping from skydiving; he felt uncomfortable having been accused of being a “gay pervert” for doing what he saw as his job: protecting the passenger. JA.718-19. 5 The New York Pattern Jury Instruction recites a “but for” standard in proving discrimination, followed by the prima facie factors under McDonnell Douglas v. Green, 411 U.S. 792 (1973). This creates a complicated puzzle requiring a jury, after finding “but for,” to consider the de minimus elements of McDonnell Douglas that is a bench issue. Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 252 n.6 (2d Cir. 2014). See New York Pattern Jury Instructions—Civil, 9:1. We noted to the Panel that this instruction does not comport with Title VII, that the loss was infected by the instruction and a federal trial remained tenable. A federal instruction would avoid
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jury returned a defense verdict. Judgment entered on October 28, 2015. JA.719, SPA.83. This appeal timely followed. (JA 718). After argument and submission, a Panel of this Court affirmed (JA 3), taking no position on the New York instruction, but agreeing that plaintiff would be entitled to a new trial if Simonton were overruled. Id. A poll of active judges of the Court granted en banc rehearing on May 25, 2017. (JA 1-2; SPA.55-56).
FACTS The Court construes evidence for the non-movant on summary judgment and resolves issues of law, including the inference to be drawn from facts, de novo. Here, only the defense won summary relief under Title VII. Since plaintiff has abandoned the state law claim, the pre-trial facts are construed favoring him. We assume nothing in having access to an en banc rehearing on a legal question, and summarize the facts as succinctly, but as sufficiently as we would to a three-judge panel. 1. The Escapade. We claim that defendants ended plaintiff’s employment because of his sex, a status inextricably intertwined with sexual orientation. Zarda lost his job because he told Orellana that he was a gay man. This case highlights the ultimate gender non-
McDonnell Douglas and advise the jury to decide if Zarda’s sex was a “motivating factor” in the adverse actions he suffered. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). Additionally, 42 U.S.C. § 1981(a) amends Title VII to provide a plaintiff with remedies even if the motivating factor does not cause adverse action, including attorneys’ fees and equitable relief.
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conforming stereotypes: (1) a man with an affectional preference for other men; and (2) his being open about it despite no other evidence as to his sexuality or its culture, save the pink-painted toenails. JA.392, 398 ¶ 15. Orellana relayed Zarda’s revelation to Kengle, who was outraged; she or he (or both of them) bootstrapped this charge with a bit of logic reminiscent of Alice’s Adventures Wonderland: that Zarda flirted with and touched her hip uncomfortably during the skydive. What is certain is that Zarda said, in response to his sense of Orellana’s discomfort, that she need not worry about having him so close: he was gay “and ha[d] the ex-husband to prove it.” JA.400 ¶ 23.
Plaintiff acknowledged to Maynard that he likely outed himself to a customer as he had in the past. He denied, however, any unexceptional contact with Orellana; experienced in his profession he, and anyone else similarly trained knew that passenger well-being requires close connection, particularly at the hips. JA.358, JA.368-370.
Orellana didn’t want to complain to Maynard, and he never spoke to her. JA.596. He only confronted Zarda. Maynard said if “convinced” a complaint is true, he “would look into it.” JA.599. Since Maynard did no investigation other than talking to Zarda, by his logic, he was convinced only that Zarda revealed he was gay. JA.402-405, ¶¶ 28-43. Nothing else mattered if in dispute, so why investigate? Enraged about the complaint at the moment he suspended him, Maynard took money from Zarda’s paycheck that he’d earlier refunded the passengers. JA.146.
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After that, he inquired nothing of anyone on the plane. Zarda’s supervisor, Richard Winstock, tried to talk Maynard down (JA.404. ¶ 37), but Maynard discharged Zarda after the suspension. JA 404, ¶ 39. When this happened, however, he did return the docked portion of Zarda’s paycheck. JA.629.
The Orellana-Kengle videotapes show both participants engaging in rousing amusement. EA1-2. Maynard quibbled about this, but admitted he saw nothing “improper, inappropriate or unsafe” that had occurred between Zarda and Orellana on their tandem jump video. JA.633. A court making inferences in favor of the nonmovant must accept the construction that the evidence shows the jump was an altogether entertaining, safe experience. Orellana and her partner each exclaimed “Awesome!” at landing. EA1 [2:52]. Zarda – who had by then jumped thousands of times – acted like a hardworking character suited up and working the crowd at Disneyworld: he could not share enough in the gaiety.
Maynard contended he terminated Zarda simply because he received a “serious complaint” (JA.653) even if uninvestigated. The District Court accepted this as a neutral non-discriminatory reason for termination, dismissed the claim given the evidence of sex-stereotyping – and the law at the time – and marked the case for trial under New York law. JA.673-691.
During the termination meeting, plaintiff secretly recorded Maynard. EA.5, Vol. I. A transcription of the conversation (JA.412) shows that Maynard barely mentions Orellana’s hip, but insists Zarda’s disclosure of his sexual orientation is an
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exposé of impermissible “personal issues,” that he likens to “escapades.” JA.639. These words prove intent, demonstrating unadulterated prejudice; being gay is no more an escapade than being Italian. The idea of “escapades” reveals, if not homophobia, a severe misunderstanding of what it is to be gay.
Months after his termination, defendants attempted to disqualify Zarda from unemployment benefits, alleging “misconduct” for the disclosure of “personal information.” But they mentioned nothing of Orellana’s alleged physical discomfort. JA.656-57. Defendants noted other unspecified complaints against Zarda. Id. Plaintiff learned in discovery these alleged grievances were similarly related to Zarda’s sexual orientation: In 2001, two women “in tears” allegedly moaned that plaintiff revealed his sexual orientation. JA.617. While plaintiff had a different understanding about 2001 (believing Maynard fired him for refusing to perform an unsafe diving maneuver, JA.394-96, ¶¶ 6-9), Maynard’s response to the Department of Labor is further evidence that revealing a non-obvious, gender nonconforming status was contrary to his mindset. In any case, Maynard documented nothing about 2001. JA.617.
2. Events at the Dropzone: Frame by Frame. Zarda was an experienced, talented skydiver. Most co-workers very much liked him; customers praised him. JA.425. Zarda’s supervisor, Winstock, rated his jump with Orellana at 97% (JA.437); Maynard gave him 8 or 9 out of 10. JA.653.
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Zarda had outed himself in other, similar situations. As was common, someone joked in a boyfriend's presence about close contact between his girlfriend and Zarda. JA.225-26. Such banter was feigned fun: “jokes” suggesting sexual innuendo are “golden oldie[s]” at drop zones nationwide. JA.224. Zarda was happy, ebullient, good-looking and athletic; if female customers were interested in him, Zarda came out as gay to “calm a situation” and take himself “out of the hot seat. It’s made me feel more comfortable to be able to say. . . ‘don’t worry. . . I’m gay[;] I have an ex-husband for proof[,]. . . [S]o if [the boyfriend] hears. . . he can know, [I’m] not going to hit on [his] girlfriend.[’]” JA.226. But this “golden oldie” did not please Kengle. JA.473-74. Orellana was uncomfortable for different reasons, including that she is claustrophobic (JA.481) – not an ideal condition when closed in a mini-plane, about to jump into the sky. Nevertheless, when her jump ended, she appears relaxed in the video (EA. Orellana Video) and after the jump poses with Zarda. Id. Some stills taken in the plane, EA.Photos, JA.361-87, show her flirting with the camera. See, e.g., JA.387.
Zarda said he was gay, and the jump with Orellana got him fired. But he did nothing to merit termination, following the book in a most literal way: “If you think you [do] your student a favor by [varying] normal . . . procedures you could be making a fatal error[.]” JA.410-11 (parachute industry warning). Zarda allegedly mishandled Orellana’s hip. But, to be privileged to pay to fall from a plane, passengers agree to close contact with the skydiver. JA.439. Winstock characterized
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this contact as an “invasion” of “the [passenger’s] space.” The release says instructors should “let [passengers] know we’re” doing that for safety. JA.321-24. Instructors know that handling hips was part of the job. JA 430, 437-38. Maynard admitted, and the visual record shows that a tandem master might even have to touch a passenger’s posterior. JA.364. Certain air maneuvers require a bear hug, and Maynard wouldn’t fire someone if there were a later complaint that someone was hugged. JA.652. A picture from the SDLI website shows a man pretending to take a nap on a woman’s head (JA.341): This is a typical image of the parachute culture. For Zarda, however, a complaint of touching the hip – where there is an attachment – was used to justify termination. On summary judgment, this must be recognized as pretext: Zarda was gay and required to touch precisely this point of connection. Additionally, Orellana was uncomfortable for many reasons, among them that she is claustrophobic. JA.481. Objectively, this seems a good reason to be for discomfort having nothing to do with Don Zarda.
Maynard admitted skydiving is not for everyone, but that “being crazy helps.” JA.590. During every jumper’s pre-jump training, however, he presents a video of a parachuting expert warning of the risk one takes in “being crazy”: “There is not. . . a perfect parachute. . . airplane. . . pilot. . . parachute instructor or, for that matter. . . student. Each. . . is subject to malfunction or human error.” JA.672. Maynard shows this video because he agrees. Id. He also requires every passenger to sign a waiver before performing a jump that can kill. Several have died at SDLI;
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with a chancy fall comes adrenaline rush, euphoria, a check off the bucket list, but also potential tragedy. JA.399, JA.587. Orellana realized, though perhaps not fully, that making it home alive was alone an accomplishment; indeed, she showed the video to her family. JA.506.
Maynard also mentioned at the termination that Zarda was whispering in Orellana’s ear. JA.640. In fact, this is common; the photos show Zarda’s mouth near Orellana’s ear to give instructions, per accepted practice. JA.369, 381, 401 ¶ 25. The instructor’s mouth and passenger’s ear must be close for safe communication. If the passenger’s head is in front of the mouth of the instructor, “when the parachute opens, [it] can. . . knock you out or crack your teeth.” JA.431. Orellana’s opinion of Zarda’s technique was not to her liking, but bear-hugging and rear-end-touching complaints would not result in a termination, so why would a whisper? On summary judgment, a court must accept the inference that “whispering” was not an issue for experienced Maynard – only that Don said he was gay; and he said he was gay because he was gay, despite no obvious outward manifestations. These are not just one, but two gender non-conforming behaviors.
3. Pretext, Disparate Treatment and Further Evidence of Animus When Maynard confronted Zarda and suspended him, Zarda asked to see the video. JA.403, ¶ 25. Maynard denied the request. Id. As indicated, Maynard agreed that nothing on the video suggested impropriety, and the only indubitably confirmed allegation was that Zarda said he was gay. Why did Zarda think he could get away
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with this? Well, in this testosterone-crammed workplace, Zarda’s orientation was subject of humor. See JA.353-56 (“don . . . [i]s a pussy. . .GAYYYYYY. . . u got it gay boy. . . do it pusssssssy. . . thats pretty gay guys!!!” stop being a vagina and take the cast off now”) (as in original). That’s how “Gay Don” fit in. Maynard went along with this until Kengle complained. Zarda retorted, “if you don't want [my sexuality] to come up, I think you . . . should tell the staff” to stop talking about it. JA.146-47. Maynard, knowing plaintiff was gay, knowing this was comic fodder, never told Zarda to cover his sexuality. JA.616. Coming out to one customer, however, got him fired.
In response to the hip allegation, Zarda asked, “Ray, does that make any sense to you? I mean, really?” Maynard responded in substance, relying on Kengle. “Well, she felt that – that,” but added, “[t]his is not working anymore for me for you to be working here.” JA.415. Maynard didn’t say what he meant by “not working anymore”: Zarda was a good employee by even Maynard’s admission. Orellana, too, wanted Zarda to protect her as needed. JA.507. Maynard said he just wanted Zarda gone because it “wasn’t working” – so why interview Orellana? “It wasn’t working.” Zarda asked Ray, what is “it.” Maynard never responded. Zarda was excellent. One young couple with few expectations had a complaint, but look at the video – they had a great time. What bothered Maynard was the revelation of Zarda’s sexuality – which Maynard disguised as “personal information” – and relegated to an illicit “escapade.” That might be ignorance, but it’s still
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discrimination, especially when personal information was fodder for workplace conversation all the time.
When Zarda came to meet Maynard to be terminated, he secreted his iPhone. JA.412-16. From that, he produced a recording from which a reasonable, properly instructed jury could find that the phrases “just not working” (without explanation), “personal information” (that applied to no one else) and equating being gay with engaging in “your escapades” were all proof of discrimination. Maynard’s tone, which is demeanor, and therefore evidence, begins calmly then grows into a defensive rage. EA (termination recording).
Plaintiff left Long Island dolefully, packing his truck and hauling his gear back to Missouri. He filed for unemployment, which defendants opposed because of “believed misconduct.” JA.343, 405-06, 669. Although inappropriate touching would seem to be self-evident misconduct, the letter did not mention the alleged act. JA.343. But again, the letter alluded to the alleged 2001 complaints: “This was not the first time that we had received complaints from paying customers regarding Mr. Zarda.” Id. The alleged complaints were old, undocumented and allegedly had to do with Zarda’s coming out to two ladies, seriatim, “on the verge of tears” JA.617-19, after jumping with Don, talking about his “after-hours activities.” JA.617. Again, Maynard didn’t understand that being gay is an all-day affair. Id. But 2001 was before New York enacted a sexual-orientation anti-discrimination law, and this Court in 2000 ruled that sexual orientation discrimination did not violate Title VII .
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Maynard, nevertheless re-hired Zarda in 2009 “because he was a good instructor. . . a good guy.” JA.620. He never told plaintiff not to say he was gay, but, it discomfited him; Zarda’s identification motivated Maynard’s terminating Don a second time.
Pre-trial, the defense contended being gay was “personal,” inappropriate for consumers, and suggested any complaints resulted in termination. JA.92. Both excuses were demonstrably false. Winstock mentioned his heterosexuality on jumps, and that was acceptable. JA.355. Sharing personal information was rife at the workplace, and advertised to the public (JA.331-32) together with borderline lewdness. JA.361-63. Furthermore, complaints against heterosexuals did not result in banishment. Just before plaintiff’s incident, when plaintiff was in Missouri, out of work with a fracture, a customer complained that a different “instructor was feeling up [his] girlfriend.” She and some other women “explained that once the parachute opened [the instructors] were touching their brea[s]ts and . . . could not protect themselves.” JA.335-340. Maynard did not investigate this complaint: He merely rejected it as slander: “[I]f someone was feeling up my girlfriend, I would . . . defend her dignity[.]” JA 337.
“You can’t have everybody happy and you can’t have everybody return.” JA.614. That’s true in any industry. Orellana agreed that Zarda “[n]ever cross[ed] the line.” JA.497. Though defense counsel tried to make her complaint sound like a desecration, she swore the experience had been “awesome.” JA 503. Her complaint
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was merely Kengle’s complaint about not the discomfort of having another man touch his girlfriend. Maynard admitted, if you don’t want to be touched, “then maybe you should not skydive.” JA.587. Indeed, to complain that an experienced, skydiver, who also happened to be gay, gave a woman “hip discomfort” in an “improper” manner when hips are points of attachment: That is like playing with a tiger then complaining of a scratch.
SUMMARY OFARGUMENT In Divergent Paths: The Academy and the Judiciary, 2016, Judge Richard Posner noted a “certain staleness” in judicial culture – a tendency of judges “to recite propositions of doubtful veracity just because they had been repeated before.” Id. at x. The learned Judge contrasted his frustration with the judiciary to the “refugees” in the legal academy, which he compared to “eunuchs in a harem[:] they know how it’s done, they’ve seen it done every day, but they are unable to do it themselves.” Id. at xi (attributed to writer Brendan Behan in describing literary critics). While any practitioner, judge or law professor can understand the viewpoint from where Judge POsner speaks, neither statement applies in every case, not even on the question of the fully unattained but ever-expanding rights of sexual minorities. In 1988, shortly after the 5-4 decision in Bowers v. Hardwick, 478 U.S. 186 (1986) – unforgotten, cruel and deservedly overruled – the first important, academic analysis supporting the rights, including constitutional rights, of gay people to sexual
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expression appeared in print. In “Homosexuality and the Social Meaning of Gender,” 1988 Wisc. L. Rev. 187, Professor Sylvia Law of NYU Law offered a nuanced discussion, grounded in cultural history, explaining how sexual orientation discrimination is simply sex discrimination. Her survey of social history argued that the disapproval of gay men and lesbians was directed primarily at the violation of gender roles, not sexual activity, id. at 188, and the denial of the equal personhood of women. Id. at 197. Same-sex erotic activity was a widely recognized fragment of Ancient Society, but by the Middle Ages, sexual expression of any kind was not a part of the collective social currency. Id. at 198. By the 19th Century, urbanization and industrialization brought about what we consider the traditional family unit and its historically prescribed gender roles. Merely being Sapphic or swishy thereby “threatened family arrangements premised on sex-differentiated roles,” id. at 200-02, and laws were enacted to discourage complication of the social organization by producing persons with ambiguous claims to a position” therein. Id at 199.
Chatting with Gloria Steinem, Justice Ginsburg expressed no surprise in this, noting that it “wasn’t until 1981 that the [C]ourt struck down Louisiana’s head and master rule, that the husband was head and master of the house.” New York Times, “Table for Three: The Fights of their Lives” November 14, 2015, p.ST1.6 (Alluding to Kirchberg v. Feenstra, 450 U.S. 455 (1981).) This Court decided Simonton v.
6 Available at https://www.nytimes.com/2015/11/15/fashion/ruth-bader-ginsburgand-gloria-steinem-on-the-unending-fight-for-womens-rights.html?_r=0 .
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Runyon, 232 F.3d 33 in 2000, and in this rehearing, plaintiff asks the Court do away with the precedent as it believes it should, from the easiest – the conflict with its other jurisprudence – to a robust Constitutional disapproval Title VII’s interpretation.
Even the panel in Simonton showed sympathy and restraint toward the plaintiff’s case: “For the sake of decency . . . we hesitate before reciting in detail the incidents of Simonton's abuse [as] we think it is important both to acknowledge the appalling persecution Simonton allegedly endured and to identify the precise nature of the abuse so as to distinguish this case from future cases as they arise” Id. at 35. But because the decision based its holding on only a pleading, it left open the question for another day as to whether a plaintiff may allege subjugation to sex stereotypes, as recognized by Price Waterhouse v. Hopkins, 490 U.S. 8 (1989), as a basis to proceed under Title VII. Simonton, 232 F.3d at 37-38.
That day has not yet come; instead of remanding Mr. Simonton to allow him to replead, the panel relied on only one case within its jurisprudence, a romancediscrimination case involving heterosexuals, De Cintio v. Westchester Cty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986). See 232 F.3d at 35-36. Additionally, the Simonton Court adopted four other circuit opinions, id. at 37-38, the first of which was Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989).7 Courts
7 The plaintiff in Williamson pled his case as race-discrimination that just happened to involve gay, white male comparators. The court read his pleading as sexual orientation discrimination nevertheless, and concluded that even if the black plaintiff were chided for wearing makeup, and the white comparators remained employed
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continue to cite Williamson as binding against gay access to Title VII, as recently as 2016. See Bland v. Burwell, 2016 U.S. Dist. LEXIS 2032 (W.D. Mo. Jan. 8, 2016). Bland, for good measure, cited Simonton, in a peculiar twist to Oscar Wilde’s aphorism, “Art imitates Life far more than Life imitates Art.” “The Decay of Lying,” Intentions, 1889, p.26.
Simonton, despite its politesse and open door, continued (until recently) its expanse throughout all Circuits (except the Federal Circuit, from which we see no case on point). The Supreme Court has never reached the issue and has held to the contrary. As the Seventh Circuit remarked in the momentous Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc): “Notable in its absence from the debate over the proper interpretation of the scope of Title VII's ban on [sexual orientation discrimination as] sex discrimination is the United States Supreme Court.” Id at 342.
This is so. The Circuits have looked only to the Circuits and Simonton was invoked as persuasive as recently as this year in Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017) (per curiam), petition for en banc filed March 31, 2017. There are no divining the motives that flow from the power of any decision from any court, but one can easily imagine a judge in another Circuit thinking, “In Manhattan they agree; cite Simonton.” This is not just speculation. Last year’s 125th Anniversary
while donning jewelry, there was no showing that the white men wore any makeup, thereby dooming the claim. 876 F.3d at 70. The jewelry was undescribed, but one imagines it was probably more flamboyant than a set of fraternity cufflinks.
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of the Circuit prompted a dedicated volume of the Fordham Law Review, which devoted an article to “The Second Circuit and Social Justice.” Professors Matthew Diller & Alexander Reinert noted the following:
[The Second Circuit] has a long tradition of breaking new ground on issues of social justice. Unlike some circuit courts which have reputations in the area of social justice built around one or two fields, such as the [predecessor] Fifth Circuit’s pioneering role in civil rights litigation or the Ninth Circuit’s focus on immigration, there is no one area of social justice litigation that could be considered the Second Circuit’s signature issue. Id., Vol. 85, p.73. Simonton might have fanned the flames in answering the question presented as “No.” However, if one accepts these Professors’ account as true, to answer “Yes” on this rehearing may permit freedoms for gay and lesbian workers to reign outwardly west, south and north, as otherwise they might not so quickly. Some courageous and otherwise outspoken judges have already come to look at the question presented in such a light, the first being Centola v. Potter, 183 F.Supp.2d 403 (D. Mass. 2002). Centola did not hold what we ask for, but held still that “[s]exual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.” Id. at 410. Over time, and certainly as of late, other judges have distinguished, criticized, and adopted contrary interpretations to Simonton, either recognizing the door to Price Waterhouse as still ajar, wondering why a case still has not traversed the door jam, or perhaps concluding the door has effectively been closed, given Simonton’s progeny. See Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 620-21 (S.D.N.Y. 2016)
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(“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims.”), rev’d in part, 852 F.3d 195 (2d Cir. 2017) (per curiam), petition for en banc rehearing filed, April 28, 2017.
One of the most senior judges in the country, Warren W. Egington of Connecticut, was the first to hold that Simonton was stale, for, among other reasons, that (1) a cause of action for associational discrimination exists, Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008); and (2) “If interracial association discrimination is held to be ‘because of the employee’s own race,’ [as Holcomb holds] so ought sexual orientation discrimination be held to be because of the employee's own sex. Holcomb and Simonton are not legitimately distinguishable.” Boutillier v. Hartford Pub. Schs., 221 F. Supp. 3d 255 (not numerated in publication but available at 2016 U.S. Dist. LEXIS 159093 at *27 (D. Conn. 2016).
Boutillier was followed by Southern District Judge Hellerstein’s Philpott v. New York, 2017 U.S. Dist. LEXIS 67591) **2-4 (S.D.N.Y., May 3, 2017), which cited the “majority concurrence” by Chief Judge Katzmann and Eastern District Judge Margo Brodie in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202-207 (2d Cir. 2017), as perhaps a harbinger?8 Judge Katzmann’s concurrence was the second federal Court of Appeals decision to find sexual orientation as at least
8 Christiansen is cited with his name in the District Court decision, but Anonymous, along with Christiansen as co-plaintiff on appeal. For the sake of consistency, we refer to the Circuit decision as “Christiansen.”
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potentially actionable under Title VII’s “because of sex” language the first being the
dissenting opinion in Evans, in which Judge Robin Stacie Rosenbaum noted:
A woman should be a “woman.” She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn't conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963—before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now. And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), superseded in part by . . . 42 U.S.C. § 2000e-2(m)), 28 years ago. Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree. Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1261 (11th Cir. 2017).
Shortly after Evans and Judge Rosenbaum’s spirited dissent, the Seventh
Circuit agreed. Chief Judge Diane Wood’s majority opinion was joined in
concurrence by Judge Posner. Analogizing the Civil Rights Act to the Sherman
Antitrust Act, he summoned the “Choking on Statutes” analogy from Judge
Calabresi’s A Common Law for the Age of Statutes, Harvard Press, 1982, Chapter 1.
Judge Posner, while not going so far as to suggest that statutes be deemed obsolete,
nevertheless acknowledged what he had earlier in Diverging Paths - that statutes
need not be reflexively interpreted by invocation of a single precedent. A judicial
interpretation of a statute may develop over time, and not be slapped down because
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courts have said this so many times before. We recognize this rare chance for the Circuit to harmonize itself not only with Hively, but the Supreme Court’s consistent interpretations of Title VII, which have never waded into the Simonton realm. The High Court always applies the “simple test” under Title VII “as to whether the evidence shows treatment of a person in a manner which” excepting sex, race, or any of the protected categories would otherwise be different. City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978).
A famous Senator rightly put it: “[T]here are still thirty states that do not have laws protecting Lesbian, Gay, Bisexual and Transgender workers. Gay couples can now enjoy all the rights and responsibilities of marriage, but if you get married on Saturday and get fired for being gay on Monday morning, that’s a pretty crummy way to start a new life together, don’t you think?” Al Franken, Giant of the Senate, 2017, p.207. The Senator is mildly inaccurate in stating that Minnesota was the first state to ban this type of employment discrimination in 1993 – it was actually second, after Wisconsin in 1992 – but his description of its implementation is apt. Though there were initially some “kerfuffles of the sort that might be a highlight of a” screwball comedy, eventually most figured out that “firing people because they’re gay or lesbian or bisexual or transgender is really cruel and dumb. Nothing bad has happened because of Minnesota’s law unless you are an employer in another state who lost a smart, hardworking and very talented worker to” one of Minnesota’s many Fortune 500 companies. Id. at 207.
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After the same-sex marriage ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the E.E.O.C., whom we are proud to call our co-party, ruled what Professor Law and many others had always believed to true – that sexual-orientation discrimination is sex discrimination. Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (July 15, 2015). There are several reasons for this which we have alluded to and will explore further. Nevertheless, the question this petition presents is one that the Court must answer to mend so many inconsistencies. The hands-off doctrine of Simonton – whose door is still open, perhaps – affords protections for heterosexuals in identical circumstances, in a manner that – though the question need not be reached – might even be unconstitutional.
STANDARD OF REVIEW The Court reviews summary dismissal de novo, resolving any facts in dispute, and inferences to be made therefrom, in favor of the non-movant. Sec. Plans, Inc. v. CUNA Mut. Ins. Soc’y, 769 F.3d 807, 815 (2d Cir. 2014).
ARGUMENT Sexual-Orientation Discrimination Is Sex Discrimination I. The Question Is far from Academic This Circuit covers three states, all of which have laws protecting against sexual orientation discrimination. Its major precedent this question and the answer in response to this rehearing will carry significant influence in other Circuits, as shown
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by Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), which cited Simonton, id. at 1258, as well the Missouri District Court decision from last year that otherwise relied on Eighth Circuit dictum. Bland v. Burwell, supra. See also Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (citing Simonton); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001) (same). The Sixth Circuit erected the wall against the gays in Vickers v. Fairfield Med. Ctr., 454 F.3d 757, 763-64 (6th Cir. 2006), citing Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005), whose holding on the question is arguably dictum, but which itself relied on Simonton.
The Court would not have granted this rehearing if a majority considered the question academic. We begin, nevertheless, by emphasizing the human condition and the right to work in an environment free from discrimination; it is important for the Court to recognize is that state and local protections – even the New York City Human Rights Law – cannot protect all sexual minorities. “[T]itle VII affords greater financial relief, including attorneys’ fees, than [Executive Law § 296, the New York State] Human Rights Law,” Margerum v. City of Buffalo, 24 N.Y.3d 721, 736 (2015). This law does not deter with a potential award of punitive damages either. Thoreson v. Penthouse Int'l, 80 N.Y.2d 490, 499 (1992). The same is true under Connecticut’s Fair Employment Practices Act, Connecticut Code - Sec. 46a-60. Tomick v. United Parcel Serv., Inc., 324 Conn. 470, 476 (2016). Each of these state remedies thus reduces the chance that an aggrieved, usually non-working, behind-in-
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rent and expenses plaintiff may find counsel to act as a private attorney general with an economic incentive to enforce the rights that exist in print, or perhaps just in theory. Although the Vermont Fair Employment Practices Act, Vermont Statutes Title 21 § 495b and the New York City Human Rights Law, (City of New York Administrative Code, Chapter 1, § 8-107 et seq.) afford effective relief, these laws do not apply to federal employees. As of 2016, there were 141,100 federal employees in these states9 whose sole remedy is Title VII. Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998) (citing Brown v. GSA, 425 U.S. 820, 835 (1976), and the limited waiver of sovereign immunity).
Thus, closest to the level where discrimination is likely to strike – and the Court knows that discrimination can occur in hidden, undetectable, devious ways – an LGBT population in this Circuit without the protections under Title VII are less likely or able to bring claims without the ability to attract competent counsel. Lesser visibility reduces the chance of being targeted, thus logically more likely the closeted LGBT will remain there. As Justice Edwin Cameron of South Africa’s Constitutional Court noted in his memoir:
Though my school years. . . . beneath the covers, I really was a sissy and wanted to be a sissy. But to be true to myself, and actually be a sissy in life indeed was unthinkable. . . . Instead, I deliberately coached myself to act with mannerisms and gestures I reckoned were more masculine. Stood squarely. Dropped my voice. Eschewed flamboyant gestures and speech. Played rugby.
9 Governing.com, http://www.governing.com/gov-data/federal-employees-workforce-numbers-bystate.html (interactive).
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Dated girls. . . . I did not want to be homosexual . . . . a stigmatized, isolated, reviled minority whose sexuality was shamefully different – whose conduct was so despised[.] Justices: A Personal Account, 2014, p.206 (italics in original). Later in life, Justice Cameron had an epiphany when, after a brief, failed marriage to a woman, his former partner, Wilhelm, died. Id. at 216. This moment recalled the deep connection between them, and “I resolved I would never again apologise for something so deeply intrinsic to my nature that it makes me what I am as a human . . . I started speaking on public platforms about lesbian and gay equality.” Id. When apartheid fell, the new government needed a Constitution, which included protections on the grounds of race, gender, age, culture and religion “‘easy cases’ for Constitutional drafting.” Id. at 213. The harder cases for inclusion were the sexual minorities. Justice Cameron nevertheless successfully persuaded his conegotiators that “they had been reviled and stigmatized under apartheid as in most political systems. And they were a minority who needed constitutional protection more even, I argued, than numerically powerful groups.” Id. He succeeded. Constitution of The Republic of South Africa, 1996 as amended, Chapter 2, § 9(c). The lesson that sits with Justice Cameron’s apt – though unstartling – conclusion that “the greatest ally of gay and lesbian persecution, and the greatest enemy of acceptance, is invisibility. . . . Sexual orientation is generally invisible, unless people choose to come out. Once families, neighbourhoods, communities,
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congregations, or co-workers know that gayness is not an alien phenomenon, once they know they have lesbian and gay sisters, brothers, neighbours, colleagues, or friends, most people move quickly to acceptance.” Id. at 215.
We have seen some increased acceptance in the United States, at least on an anecdotal level – though some would argue the opposite because of backlash. See Omar G. Encarnación, “The Global Backlash Against Gay Rights,” Foreign Affairs, May 2, 2017, available at https://www.foreignaffairs.com/articles/2017-0502/global-backlash-against-gay-rights; Richard Socarides, The New Yorker, “North Carolina and the Gay-Rights Backlash,” March 28, 2016, available at http://www.newyorker.com/news/news-desk/north-carolina-and-the-gay-rightsbacklash. Gay activist and writer Michelangelo Signorile thus warns against “victory blindness.” It’s Not Over, 2015, p.3. He argues that now is the
time for us to be . . . intolerant of all forms of . . . bigotry against LGBT people. . . . Anything less than full acceptance and full civil rights must be defined as an expression of bias, whether implicit or explicit. And it has to be called out – even if that means challenging our friends, co-workers and others were know and respect – if we are to get beyond tolerance. Id. at 175. This case is not just about the elite “homosexual agenda, by which [is meant] the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia, J., dissenting). It is just as much if not more about those lacking in the power of elites who cannot afford – as Don Zarda
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probably could not have afforded – to come out of the closet. Longer ago than one might have expected, author D.L. King published the first extensive look at black men of indeterminate sexuality: On the Down Low: A Journey into the Lives of ‘Straight’ Black Men Who Sleep with Men, 2005. The book was controversial and criticized in the African-American community as reinforcing stereotypes of black men as “self-loathing [and] secretive [.]” New York Times Magazine, “America’s Hidden HIV Epidemic” June 6, 2017, p.38.10 Indeed, King denied being gay until years after the book was published. Id. Nevertheless, he was the first to tell his story of a common version of shame, harming women and hiding his sexuality; he also revealed statistics from the Centers for Disease Control showing disparate rates among people with HIV as comprised disproportionately by black women. On the Down Low, at 9.11
Insofar as discrimination on the basis of sexual orientation may logically lead to gay men and lesbians legally unprotected remaining under cover, or in denial, sexual orientation discrimination has thus directly or indirectly contributed to many unhappy lives and the continued spread of HIV. Fortunately, there are so many paths
10 Available at https://www.nytimes.com/2017/06/06/magazine/americas-hidden-hivepidemic.html. (All internet citations were visited as of June 25, 2017.) 11 Statistics are at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5247a2.htm. The CDC reports that the numbers today are largely unchanged. See CDC statistics at https://www.cdc.gov/hiv/group/gender/women/index.html. At present, in their lifetimes, one half of Afro-descendent gay men can expect to be diagnosed with HIV. See “America’s Hidden HIV Epidemic,” New York Times Magazine.
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under Title VII as written and as interpreted by the Supreme Court that push light further into darkness. II. Holcomb v. Iona College Abrogated Simonton
We begin with associational discrimination – a theory largely unexamined in this context until Baldwin – because it is the simplest way to do away Simonton as recognized by the district court in Boutillier, 221 F. Supp. 3d 255, 2016 U.S. Dist. LEXIS 159093, at *27. “Two and two have been added together, and still they make only four.” Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 152 (1950) (Jackson, J.). So too, one minus one make for none. Two of the three authors of Simonton have held that associational discrimination extends to the plaintiff’s own race, “not just the person to whom he associated.” Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008).
Holcomb post-dated Simonton and the latter’s nuance renders this Court the one to make the statutory reconciliation by doing away with either one or the other. It goes without saying that associational discrimination can’t be abolished so simply – it is a firmly entrenched doctrine allowing the “person aggrieved” provision of Title VII to be “allowed standing as broadly as is permitted[.]” Thompson v. N. Am. Stainless, 562 U.S. 170, 176 (2011) (Scalia, J.). In that case, a unanimous result with concurrences, the Court extended Title VII to what the Sixth Circuit wrongly characterized as “third-party retaliation.” Id. at 172. Thus, if one’s partner cannot be a victim of discrimination, and one’s marital partner can be of the same sex, see
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Obergefell v. Hodges, 135 S. Ct. 2584 (2015), then why can’t a “person aggrieved” be one associated with a particular sex? This question is one Holcomb did not need to answer, but the Court should now.
The losing party in Holcomb argued: Congress never amended Title VII to include associational discrimination, but two of three judges in Simonton rejected this point: The aggrieved “employee suffers discrimination because of the employee’s own race.” Holcomb, 521 F.3d at 139. So too does a lesbian endure discrimination based on her sex if she is disfavored against by association with another woman. Had Zarda been a woman, the suggestion of his sexuality would not have been problematic, as the evidenced by Winstock’s experience as openly heterosexual, which the defense saw as perfectly fine. Holcomb is this Court’s Baldwin, in part, dressed in the language of race. Extend Holcomb to same-sex partners and Simonton is dead.
Furthermore, the original panel in Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016) (Hively I), while noting it was “presumptively bound by [its] own precedent,” id. at 701, also noted that the “relationship in play need not be a marriage to be protected. A number of courts have found that Title VII protects those who have been discriminated against based on interracial friendships and other associations.” Id. at 716, adhering to earlier precedent and rev’d on other grounds, 853 F.3d 339 (7th Cir. 2017) (Hively II). Title VII “on its face treats each of the enumerated categories exactly the same.” Id. (citing Price Waterhouse, 490 U.S. at
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244 n.9). Conclusively, therefore, insofar as the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it equally prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. One and one and one and one also add up to four. III. Same-Sex Attraction Is High on the List of Non-Conforming Sex
Stereotypes. To Identify Openly as LGBT, when One May Otherwise Cover as Heterosexual, Is Probably Even Higher. In Don Zarda’s experience, even those with refined gaydar who looked at or interacted with him – unless (as he attested), he was seen to throw a ball – would not know he had an inner Nancy. JA.182-84. But as so many cases have recognized, “the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear.” Centola v. Potter, 183 F.Supp.2d 403, 408 (D. Mass. 2002). After the Circuits firmly decided that being – not to mention expressing – that one was part of a sexual minority was not protected by Title VII, the attempt to separate discrimination based on sexual orientation from that based on sex stereotyping became an elusive, arduous chore. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (“it is often difficult to discern when [the plaintiff] is alleging that the various adverse employment actions allegedly visited upon her by [her employer] were motivated by animus toward her gender, her appearance, her sexual orientation, or some combination of these” because "the borders [between these classes, if indeed they are separate classes] are so imprecise.”); Prowel v. Wise Bus. Forms, Inc., 579
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F.3d 285, 291 (3d Cir. 2009) (“the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw.”); Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003) (“We recognize that distinguishing between failure to adhere to sex stereotypes (a sexual stereotyping claim permissible under Title VII) and discrimination based on sexual orientation (a claim not covered by Title VII) may be difficult. This is especially true in cases in which a perception of homosexuality itself may result from an impression of nonconformance with sexual stereotypes."); Id. at 1067 (Posner, J., concurring) ("Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter.").
However, as the en banc majority in Hively II recognized, it is time to stop repairing shredded shoestrings. Just as Price Waterhouse held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination, and the Supreme Court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim, Hively I frankly acknowledged how difficult it is “to extricate the gender nonconformity claims from the sexual orientation claims.” 830 F.3d at 709. That effort, it commented, has led to a “confused hodge-podge of cases,” which Hively II simply held unworkable, haphazard and “limited [in its] success [in] trying to figure out how to draw the line between gender norm discrimination, which can form the basis of a legal claim under Price
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Waterhouse's interpretation of Title VII, and sexual orientation discrimination[.]” Id.
at 705-06 (citing Brian Soucek, Perceived Homosexuals: Looking Gay Enough for
Title VII, 63 Am. U. L. Rev. 715, 726 (2014) (“The challenge facing the lower courts
since Price Waterhouse is finding a way to protect against the entire spectrum of
gender stereotyping while scrupulously not protecting against the stereotype that
people should be attracted only to those of the opposite gender.”)
Chief Judge Katzmann recognized this in Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195 (2d Cir. 2017), joined in concurrence by Judge Brodie, stating that
such discrimination is inherently rooted in gender stereotypes. In Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004), we considered "a crucial question: What constitutes a gender-based stereotype?" While we did not definitively answer that question, we invoked the Seventh Circuit's observation that whether there has been improper “reliance upon stereotypical notions about how men and women should appear and behave” can sometimes be resolved by “consider[ing] . . . whether [the plaintiff's] gender would have been questioned for [engaging in the relevant activity] if he were a woman rather than a man.”
Christiansen, 852 F.3d at 205 (page numbers omitted).
The time has come for this Circuit, as well, to recognize the unworkability of
the line between impermissible sex-stereotyping and sexual orientation
discrimination as a subset therein. The en banc rehearing has been voted by a
majority of active judges and it is time to change panel precedents. Good reasons for
this include “a change in applicable regulations, a judicial decision dealing with a
related or analogous issue, a change in the social or economic context of an issue, or
some other important new information.” Bethesda Lutheran Homes & Servs. v. Born,
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238 F.3d 853, 858 (7th Cir. 2001) (Posner, J.). We present all of these. While Title
VII is not per se implicated by the gay-marriage cases, they are inconsistent, if not
precisely on point. Hively II, the Chief Judge’s concurrence in Christiansen, as well
as the district court cases cited herein, are judicial decisions dealing with a related or
analogous issue. While we will not succumb to “victory blindness,” the
achievements of gay rights in the legal realm provide the torque upon which this
Court should drive forward rather to stop and watch sexual minorities attempt to
achieve their rights incrementally, dispensing with a plain reading Title VII as
interpreted.12
IV. Sexual Orientation Discrimination Is Sex Discrimination Per Se
The EEOC concluded in Baldwin that
‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.” If “an employer suspends a lesbian employee for displaying a photo of her female spouse. . . but does not . . . a male employee for displaying a photo of his female spouse. . . her employer took an adverse action against [the lesbian] that [it] would not” had she been male.
2015 EEOPUB LEXIS 1905, at *6-7.
12 As Amicus Lambda Legal Defense points out, the Hively dissent uses the wrong comparators by holding Ms. Hively was discriminated against simply as a gay woman. The dissent notes, “If the facts show that Ivy Tech hired heterosexuals for the six full-time positions, then the community college may be found liable for discriminating against Hively because of her sex. That will be so even if all six positions were filled by women. Try explaining that to a jury.” Hively II, 853 F.3d at 373 (7th Cir. 2017). This analysis is sophistry and unnecessarily cynical. Any jury would be instructed under Hively’s sex-stereotyping claim: “If you find that the termination of Ms. Hively’s contract was motivated by a sex stereotype, which includes her affectional preference for women, you may find Ivy Tech liable for sex discrimination.”
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Judges Katzmann and Brodie agreed with this analysis in their majority
concurrence in Christiansen:
First, sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex. A person is discriminated against “because of . . . sex” if that person is "exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 . . . (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). . . . [Alternatively,] an action constitutes sex discrimination under Title VII if “the evidence shows treatment of a person in a manner which but for that person's sex would be different,” . . . and Title VII's prohibition "must extend to [discrimination] of any kind that meets the statutory requirements.
852 F.3d at 202 (emphases in original, some citations omitted).
The counterintuitive hypothesis necessarily involves some guesswork, and as
applied to this case one must suspend disbelief and perhaps imagine two scenarios.
First, most simply, had Zarda been a woman, no one would have said in front of a
“her” and Orellana: “I bet you didn’t think your girlfriend was gonna get strapped up
to another guy!” The teleology of events would not have played out as it had, and
Zarda would not have been fired.
In the alternative, Lewis Carroll could have constructed a scenario wherein the
statement was made, the hypothetical female Zarda then reassured Orellana that he
was gay and had an ex-husband to prove it. Perhaps repetition of the “golden oldie”
would have been an insult to Zarda; or perhaps it would have been confusing to
everyone; or perhaps it would have been understood as part of the SDLI workplace
culture where sexuality was discussed so openly: “[Y]ou pulled your pork with us,
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now come and get laid at the skydlve long island luau,” JA.342, “u got it gay boy. . . do it pusssssssy. . . thats pretty gay guys!!!” stop being a vagina and take the cast off now.” JA.353-56. The actual scenario wherein Zarda's expressing his sexuality and being accused of disreputably touching Orellana where she agreed and needed to be touched seems as if it comes from Alice in Wonderland, through the looking glass and down the rabbit hole; but the obverse scenario would at least not have provoked thoughts of sexual dalliance: no jealousies activated, and likely no complaints about the gay men and their license to flirt.
But Zarda was a man, and what happened to him in real life – being fired for being a man attempting to extricate himself from the innuendo that he was heterosexual and had an interest in Orellana – was impermissibly based on his gender. . V. Simonton Has Lost Its Moorings. Legislative Inaction Is Uninformative,
and an Improper Manner in which to Divine Legislative History. A. Simonton’s Holding Was Limited to One Plaintiff and the Cases upon
which It Was Grounded Have Lost their Influence. The EEOC contends, as does plaintiff, that Simonton was incorrectly decided. Simonton relies on cases “implicitly overruled by Price Waterhouse and Oncale as well as Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.1984), which was explicitly overruled Hively II, 853 F.3d at 341. Simonton also cites DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979), which was abrogated
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by 42 U.S.C. § 1981a, and its predecessor case law. Cf. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 875 (9th Cir. 2001) (recognizing abrogation). Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982), which Simonton also cited, is four-paragraphs, predated Price-Waterhouse and Oncale, and relies entirely on DeSantis.13
Skidmore v. Swift & Co., 323 U.S. 134 (1944), tells us that agency opinions “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” insofar as they have the power to persuade. Id. at 140. The EEOC’s position is that Simonton is feeble, if not lifeless. A panel of this Court perhaps signaled as much in Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015). Fowlkes made no grand pronouncements, but extended equity to a transgender litigant based on the EEOC’s Macy v. Holder, 2012 EEOPUB LEXIS 1181 (E.E.O.C. Apr. 20, 2012) (allowing a transgender plaintiff to proceed under Title VII). Without extended analysis, Fowlkes would appear incompatible with Simonton and demonstrates that Circuit judges see that the time has arrived to rethink the protections afforded the LGBTQ under Title VII. It would have been easy to affirm in Fowlkes, given the significantly late filing of the plaintiff’s EEOC charge. 790 F.3d at 382.
13 Our thanks to Jeremy Horowitz and his amicus brief in Burrows v. The College of Central Florida (11th Cir. 15-14554), which settled before appellate disposition, but which may be found at http://www.eeoc.gov/eeoc/litigation/briefs/burrows.html.
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What about Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)? Dawson relies on Simonton, and if the latter case should fall, Dawson should as well. However, Dawson, while recognizing the difficulty in drawing a distinct line between sex stereotypes and leaving the LGBT out of the ambit of Title VII, 398 F.3d at 215, characterized Simonton as holding that being gay should not be used to “bootstrap protection for sexual orientation into Title VII.” Id. at 218. That’s not exactly what Simonton said. In fact, while declining to remand to allow the plaintiff to amend, Simtonton said, “we think the wisest course is to defer consideration of the merits of such an argument to another case in which it comes to us after being properly pled and presented to the district court.” 232 F.3d at 38 (emphasis added). Dawson thus closed the metaphoric closet door on gays under Price-Waterhouse when to do so was not the holding (or the dicta) of Simonton. It was also unnecessary to Dawson’s holding. “A judge's power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’” United States v. Rubin, 609 F.2d 51, 69 (2d Cir. 1979) (Friendly, J., concurring). As Judge Leval opined in his 2006 Madison Lecture at NYU, “What separates holding from dictum is better seen as a zone, within which no confident determination can be made whether the proposition should be considered holding or dictum.” 2006 NYU Law Review 81:1249, 1258.
Ms. Dawson presented many theories of relief under Title VII, the New York State and New York City Human Rights Laws, and thus there are many zones to
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explore in the appellate decision. The District Court granted summary judgment on each of her theories, including explicit sexual orientation anti-discrimination laws available under Executive Law § 296 and the New York City Administrative Code. Dawson v. Bumble & Bumble, 246 F. Supp. 2d 301, 313 n.4 (S.D.N.Y. 2003). Thus any discussion of the plaintiff’s sexual orientation claim was unnecessary to the holding.
As to sex stereotyping, it appears that Christiansen has clarified Dawson, insofar as the per curiam opinion allowed the plaintiff a remand on the question of his sex stereotyping claim: “Simonton and Dawson do not suggest that a “masculine” woman . . . has an actionable Title VII claim unless she is a lesbian; to the contrary, the sexual orientation of the plaintiff in Price Waterhouse was of no consequence.” Christiansen, 852 F.3d at 200. Judge Hellerstein noted this clarification in Philpott, 2017 U.S. Dist. LEXIS 67591 at *3.
Ultimately, insofar as it relies on Simonton – which we ask the Court overrule – the only part of Dawson necessary to the holding is the affirmance of the dismissal of plaintiff’s uncomplicated sex discrimination claim under Title VII: She alleged she was subject to a hostile work environment and her being a woman in any guise subjected her to discrimination. These theories were rejected without reference to sex stereotyping or sexual orientation and are the only zones necessary to the holding:
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[The Co-worker’s] comments were "crude and offensive," but that any liability against Bumble & Bumble arising from the comments was precluded by the salon's disciplining of [him] after Dawson complained of his actions. . . . [Insofar as] Dawson [alleges her termination] as being based upon a belief that only men could succeed in the styling profession. . . . Since [the supervisor’s] alleged comments refer to a preference for males, and make no mention of gender stereotypes or sexual orientation . . . Dawson has produced no credible evidence that gender stereotypes played any part in Bumble & Bumble's decisions as to promotions to hair stylist.
Further, assuming arguendo that Dawson has made out a prima facie case of gender discrimination on the basis of [the supervisor’s] alleged comments, Bumble & Bumble has successfully met its burden to refute any inference of discrimination arising from them. As noted by the district court, Bumble & Bumble presented statistical evidence that "nine out of fifteen assistants . . . selected for the advanced styling class while Dawson worked at the Salon were women" and that "of the 38 assistants hired by the Salon during the 17 months Dawson was employed, only four of them, all of them women, advanced through the entire educational program and were promoted to stylist.
Dawson, 398 at 223-24 (2d Cir. 2005). This unique case was distinctive to its facts,
but broke no new ground under Title VII. The remaining issues were unnecessary to
the holding, given (1) the affirmance of the dismissal of the outright sexual
orientation claims under the New York laws; (2) the loosely misinterpreted dictum in
Simonton; and (3) the clarification by Christiansen, which allows the plaintiff to
proceed on the grounds that, though gay, he presented as effeminate, and allowing
him to proceed on a claim for sex stereotyping. Christiansen, 852 F.3d at 200.
B. Supporting any Holding on Legislative Inaction Is Improper. The Text of Title VII as Interpreted by the Supreme Court Governs.
The attempt to divine congressional intent under Title VII is futile and can
offend the norms of statutory construction. As the late Justice Scalia held, when the
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Supreme Court extended same-sex workplace harassment under Title VII, he acknowledged it was
not the principal evil Congress was concerned with . . . But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Oncale, 523 U.S. at 79-80. Indeed, Congress adopted Title VII without suggestion that sex stereotypes were illegal, see Price Waterhouse, nor sexual harassment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). This Court did not recognize its distinct view of associational discrimination until 2008. Holcomb, 521 F.3d at 138. A lack of Congressional action is always a weak, counter-intuitive manner in which to divine Congressional intent. The Civil Rights Act passed over fifty years ago. Only a repeal of Title VII would disallow this Court from adopting the reasoning in Hively or Baldwin. An argument that Title VII lies within the purview of the Legislative branch is true as to matters where the statute is clear, but ignores the interpretive functions of the judiciary. Is it not close to certain that few members of the 88th Congress envisioned a man asserting a claim of sex discrimination in an all-male workplace, or a white worker claiming discrimination after being rejected by a company that hired only whites. But see Oncale v. Sundowner Offshore Servs , 523 U.S. 75 (1978). See also Parr v. Woodmen of the World Life Ins.Co., 791 F.2d 888 (11th Cir. 1986) (prohibiting discrimination based on interracial marriage and
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relied upon by Holcomb, 521 F.3d at 129). Referring to the non-passage of legislation does not suggest the legislative history of Title VII is limited. This Court should not repeat the mistake of Simonton – recognized by the Simonton panel as a poor method of statutory interpretation – in relying on legislative inaction to proposed laws overlapping with Title VII,
In an excellent recitation of legal history – as opposed to legal analysis per se – Yale Law School Professor William Eskridge wrote in “Interpreting Legislative Inaction,” 87 Michigan Law Review 67 (1988)14 that legislative inaction can be used to support potentially limitless propositions. The Supreme Court “has grappled with such arguments since the nineteenth century, oftentimes finding inaction arguments persuasive but other times finding them unappealing.” Id. at 67. These debates intensified in the 1980’s with the appointment of Justice Scalia, “who has articulated sophisticated arguments against giving positive meaning to legislative inaction.” Id. at 68. For example, as he concurred in Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010), “The Constitution gives legal effect to the 'Laws’ Congress enacts, Art. VI, cl. 2, not the objectives. Members aimed to achieve in voting for them.” (citing Oncale). Oncale and the late Justice’s concurrence are thus on point with our interpretation of Title VII, that “statutory prohibitions often go beyond the principal evil [that Congress intended] to cover reasonably comparable evils[.]” Id. at 79. 14 Available at http://digitalcommons.law.yale.edu/fss_papers/3826
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Judge Egington covered this ground in Boutillier, 221 F. Supp. 3d 255, 2016 U.S. Dist. LEXIS 159093 at **23-24, citing Supreme Court precedent:
[S]ubsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress. It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a proposal that does not become law. Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change. Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (emphasis in original). VI. Are there Constitutional Implications in the Question Presented? Yes. The question has been limited to the statute, but may a statute be unconstitutionally applied when it gerrymanders away a protected class? We say yes, though the Court need not reach this question if it agrees with any of Points II-V. The “Supreme Court has wisely cautioned against unnecessary constitutional rulings. It is a long-honored principle that a court should decide a constitutional question only when there is no other basis for resolving the dispute.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring); see also Tory v. Cochran, 544 U.S. 734, 740 (2005) (Thomas, J., dissenting) However, in addition to rejecting statutory norms offered by the Supreme Court, the jurisprudence of ten circuits vis-à-vis sexual orientation as sex discrimination under Title VII is incompatible with United States v. Windsor, 133 S. Ct. 2675 (2013), and freedom of association, the underpinning of Obergefell v.
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Hodges, 135 S. Ct. 2584 (2015). Neither case overrules Simonton; they just make it jurisprudentially inconsistent with both cases. The Circuits made up the law in the area, and, now inconsistent, as has the Seventh, the Circuits should free gay people from judge-made jurisprudence, never sanctioned by the Supreme Court. Affording constitutionally heightened scrutiny to gay people creates a new legal world in which Simonton does not fit. The Constitution cannot afford the a constitutionally protected class access to one right, then deny an arguably lesser right by resort to precedent that, at least initially, did not consider the constitutional question, or rely on then canons of construction outlined in Oncale: social norms; or legislative nonaction. Simonton relies on one, perhaps both, and came well before Windsor and Obergefell.
Title VII’s wording is broad and has been interpreted to include scenarios not considered at its adoption. Sex stereotyping is one scenario and a basis to read “sex” to include “sexual orientation.” Simonton stands in the way, but Judge Katherine Polk Failla courageously asked the Circuit to “erase” the “impractical” lines drawn between sex stereotyping and the limitations of Simonton. Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 620-21 (S.D.N.Y. 2016). Now is the chance.
The Constitution bestows gays heightened scrutiny. What difference does that point make to Title VII? Well, social exclusion of the LGBT reflects disapproval of their nonconformity with gender-based expectations, who have suffered a history of discrimination as beautifully outlined by Judge Weinstein in Roberts v. UPS, Inc.,
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115 F. Supp. 3d 344, 360 (E.D.N.Y. 2015). Private employers are not bound to afford all Constitutional protections in the workplace; but courts, interpreting Title VII, must provide Equal Protection to gay and lesbian people as afforded straight people; gay men and lesbians cannot be carved out of Title VII because they belong to a unique category. The recent Supreme Court decisions regarding LGBT jurisprudence are inconsistent with a regime – unmoored in legislative history – that Title VII does not include lesbians and gay men.
Professor Law points out various Constitutional theories in her groundbreaking work, see Wisc. Law Rev. at 222, et seq., that exceed the scope of the question presented. We contend, nevertheless that because gay people have Equal Protection to marriage, courts should not avoid a Constitutional analysis where gays are held to a different standard when alleging claims of sex-stereotyping or associational discrimination than are heterosexuals. Simonton was decided at the end of an extended period of LGBT intolerance and decided on what are by now surely rickety precedents. We respectfully contend that, save Hively, appellate decisions gerrymander lesbians and gay men out of Title VII, and to do so violates the Equal Protection Clause of the Constitution, Amendment XIV.
CONCLUSION Appellant respectfully asks that the En Banc Court answer the Question Presented as “Yes,” overrule Simonton as it sees it sees fit, as well as Dawson, if
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necessary. The Panel has already noted that Zarda may receive a new trial if Simonton is overruled. This is consistent with the District Court’s denying summary judgment to the defense on Zarda’s New York sexual orientation discrimination claim, thus the En Banc Court should remand to the District Court, consistent with its holding.
Dated: New York, New York June 28, 2017
Dated: New Paltz, New York June 28, 2017
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CERTIFICATION PURSUANT TO FRAP 32(a)(7)(C) Gregory Antollino, an attorney admitted to this Circuit and attorney for plaintiff-appellant, hereby certifies pursuant to Federal Rule of Procedure 32(a)(7)(C) that this brief contains 12,736 words from Question to Conclusion as computed by the word processing program Microsoft Word used to prepare the brief. The font is Times New Roman, a proportional font, at 14 point. The brief was scanned for viruses using the program Antivirus Thor. Dated: New York, New York June 28, 2017
66
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SPECIAL APPENDIX AND TABLE OF CONTENTS

Order for En Banc Rehearing

52

Panel Opinion

54

Trial Court Ruling Declining to Reconsider Ruling on Summary Judgment

based on Baldwin v. Runyon

64

Original Trial Court Ruling on Summary Judgment

66

Judgment Appealed

85

67
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15-3775 Zarda v. Altitude Express, Inc.

United States Court of Appeals
FOR THE
SECOND CIRCUIT
ORDER

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of May, two thousand seventeen.

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.

15-3775

Following disposition of this appeal on April 18, 2017, a judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and a majority of the active judges of the Court having voted in favor of rehearing this appeal en banc, IT IS HEREBY ORDERED that this appeal be heard en banc. See Fed. R. App. P. 35(a). The en banc panel will consist of the active judges of the Court, as well as those senior judges who sat on the panel that heard the initial appeal. See 28 U.S.C. § 46(c).

(SPA) 052

Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page61 of 97 The parties are instructed to brief only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?” We invite amicus curiae briefs from interested parties. Appellants’ brief and appendix, and any amicus curiae briefs in support thereof, shall be filed by June 26, 2017. Appellees’ brief and appendix, and any amicus curiae briefs in support thereof, shall be filed by July 26, 2017. Appellants’ reply brief shall be filed by August 9, 2017. Oral argument will be held on September 26, 2016 at 2:00 p.m. at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY.
FOR THE COURT: Catherine O=Hagan Wolfe, Clerk
2
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15-3775 Zarda v. Altitude Express
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016
(Argued: January 5, 2017 Decided: April 18, 2017) Docket No. 15-3775
- - - - - - - - - - - - - - - - - - - -x 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, doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD,
Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x
Before: JACOBS, SACK, and LYNCH, Circuit Judges. Donald Zarda, a skydiver, sued his former employer in the United States District Court for the Eastern District of New York (Bianco, J.), asserting (inter alia) sexual-orientation discrimination in violation of New York state law and sex
(SPA) 054

Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page63 of 97
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. The district court, relying on our decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), declined to hold that discrimination based on sexual orientation constituted discrimination based on sex for purposes of Title VII. The state-law claim for sexual-orientation discrimination went to trial where a jury found for the defendants. On appeal, Zarda argues that Simonton should be overturned. We do not entertain that argument because a panel of this Court could not overturn another panel’s decision. Moreover, we reject Zarda’s argument that he is entitled to a new trial on his state-law claim because of alleged evidentiary errors, unfair discovery practices, and prejudicial arguments to the jury based on gay stereotypes. Consequently, we AFFIRM the judgment of the district court in all respects.
GREGORY ANTOLLINO, New York, NY, for Appellants.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Appellants.
SAUL D. ZABELL, Zabell & Associates, P.C., Bohemia, NY, for Appellees.
Lenora M. Lapidus, Gillian L. Thomas, Ria Tabacco Mar, and Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; Erin Beth Harrist, Robert Hodgson, and Christopher Dunn, New York Civil Liberties Union Foundation, New York, NY, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union; 9to5; National Association of Working Women; A Better Balance; Coalition of Labor Union Women; Equal Rights Advocates; Gender Justice; Legal Voice; National Women’s Law Center;
2
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Southwest Women’s Law Center; Women Employed; Women’s Law Center of Maryland; Women’s Law Project, in support of Plaintiffs-Appellants.
Michael D.B. Kavey, LGBTQ Rights Clinic, New York, NY; Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY; Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Amicus Curiae Lambda Legal, in support of Plaintiffs-Appellants.
PER CURIAM:
Plaintiff Donald Zarda, a skydiver, alleges that he was fired from his job as a skydiving instructor because of his sexual orientation.1 He sued his former employer, Altitude Express (doing business as Skydive Long Island) and its owner Raymond Maynard (collectively “Altitude Express”), asserting that he was discriminated against in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and New York law.2 The United States District Court for the Eastern District of New York (Bianco, J.), found a triable issue of fact as to whether Zarda faced discrimination because of his sexual orientation in violation of New York law, but otherwise granted summary judgment to Altitude Express on Zarda’s discrimination claims. In particular, the district court held that the defendants were entitled to summary judgment on Zarda’s Title VII claim because Second Circuit precedent holds that Title VII does
1 Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda and his estate’s executors are collectively referred to as “Zarda.”
2 Zarda also alleged violations of state and federal laws relating to overtime and minimum wage. Those claims are not before us on appeal.
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not protect against discrimination based on sexual orientation. At trial, the jury found for the defendants on Zarda’s state-law claims.
On appeal, Zarda requests that we reconsider our interpretation of Title VII in order to hold that Title VII’s prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation.” Since a three-judge panel of this Court lacks the power to overturn Circuit precedent, we decline Zarda’s invitation.
Separately, Zarda asserts that several errors infected the trial on his statelaw discrimination claim, warranting a new trial. Finding no abuse of discretion by the district court, we affirm the judgment in all respects.
I
In 2010, Rosanna Orellana and her boyfriend David Kengle went skydiving at Altitude Express. Each purchased tandem skydives, in which the instructor is tied to the back of the client so that the instructor can deploy the parachute and supervise the jump. Zarda was Orellana’s instructor.
At some point, Zarda informed Orellana that he was homosexual and he had recently experienced a break-up. Zarda often informed female clients of his sexual orientation--especially when they were accompanied by a husband or boyfriend--in order to mitigate any awkwardness that might arise from the fact that he was strapped tightly to the woman.
When Orellana and Kengle compared notes on their respective skydives, and Kengle learned that Zarda had disclosed his sexual orientation, Kengle called Altitude Express to complain about Zarda’s behavior. Zarda was fired shortly thereafter. Predictably, the parties dispute why Zarda was terminated. Altitude Express observes that Orellana had various complaints about Zarda’s behavior, and the company contends that Zarda was fired because he failed to provide an enjoyable experience for a customer. For his part, Zarda asserts that he acted appropriately at all times and was fired because of his sexuality: either because of
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his supervisor’s prejudice against homosexuals or because he informed a client about his sexuality.3
II
The district court determined that there was a genuine dispute of material fact regarding the reason for Zarda’s termination. However, the district court concluded that Zarda was entitled to a trial only with respect to his state-law cause of action. See N.Y. Exec. Law § 296(1)(a) (defining discrimination on the basis of sexual orientation as “an unlawful discriminatory practice”). Zarda’s Title VII claim, by contrast, was dismissed at summary judgment.
That outcome ultimately resulted from longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.” J. App’x at 30. Accordingly, the district court, granted summary judgment in favor of defendants without analyzing whether Zarda could rely on a “sex stereotype” that men should date women. Instead, the district court limited its analysis to the “sex stereotypes” alleged by Zarda, including “what you may wear or how you may behave.” Special App’x at 26. Determining that Zarda failed to establish the requisite proximity between his termination and his proffered instances of gender non-conformity (not including the fact that he dated other men), the district court granted summary judgment to defendants on Zarda’s Title VII claim.
3 Zarda alleged that another skydiving instructor had disclosed that he was heterosexual but was not punished.
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During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). Relying on Baldwin, Zarda moved the district court to reconsider its grant of summary judgment on his Title VII claim. The district court denied the motion, holding that Simonton was contrary to the EEOC’s decision, and that it barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII.
After his state-law sexual-orientation claim proceeded to trial and a jury found for the defendants, Zarda appealed.
III
Zarda asserts that Simonton’s holding that “Title VII does not proscribe discrimination because of sexual orientation” is incorrect and should be overturned. 232 F.3d at 36. As a threshold matter, Altitude Express contends that we need not consider this argument in light of the jury verdict in favor of the defendants on Zarda’s state-law discrimination claim. Essentially, Altitude Express argues that the scope of Title VII’s protections are irrelevant to Zarda’s appeal because the jury found that Altitude Express had not discriminated.
Altitude Express is incorrect; Zarda’s sex-discrimination claim is properly before us because the district court held him to a higher standard of causation than required by Title VII. Under Title VII, a plaintiff must demonstrate that sex “was a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision to take the [adverse employment] action.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). Accordingly, to show causation for sex discrimination under Title VII, “[i]t suffices . . . to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013).
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At trial, the district court instructed the jury that Zarda could prevail on his state-law sexual-orientation discrimination claim only if he could prove that “he would have continued to work for Altitude Express . . . except for the fact that he was gay.”4 J. App’x at 1771. In other words, the jury charge required Zarda to prove but-for causation, which is a higher standard of causation than is necessary for Title VII sex-discrimination claims. See Vega, 801 F.3d at 86 (“[A] plaintiff in a Title VII case need not allege ‘but-for’ causation.”).
If Zarda is correct that discrimination based on sexual orientation is equivalent to prohibited sex discrimination under Title VII, then he would have been entitled to a jury instruction on the less stringent “motivating-factor” test for causation. See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (indicating that an instruction that advises the jury on an erroneously high burden of proof warrants a new trial). It is entirely possible that a jury thought that Zarda’s sexual orientation was “one of the employer’s motives” (i.e. a “motivating factor”) in its termination decision, but was not a “but-for cause” of his firing. In sum, if Title VII protects against sexual-orientation discrimination, then Zarda would be entitled to a new trial.
Zarda’s request that we overturn Simonton is therefore not mooted by the jury verdict on his state-law claim. Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar, see United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004); cf. Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (in banc) (overturning, as an in banc court, prior Seventh Circuit precedent holding that Title VII did not prohibit discrimination based on sexual orientation).
In Christiansen, the panel nonetheless remanded to the district court after concluding that the plaintiff had stated a plausible claim of “gender
4 We express no view as to whether the district court correctly instructed the jury on New York law.
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stereotyping,” which is actionable under Title VII. 2017 WL 1130183, at *4. That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal. Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation--a result foreclosed by Simonton.
IV
Zarda asserts that he is entitled to a new trial on his state-law, sexualorientation discrimination claim for several reasons. None has merit.
A
Evidentiary Rulings. Zarda contends that the district court improperly admitted two types of prejudicial evidence. He suggests that the probative value of the evidence was substantially outweighed by its resulting prejudice. See Fed. R. Evid. 403. We review the district court’s decision to admit this evidence for abuse of discretion. Harris v. O’Hare, 770 F.3d 224, 231 (2d Cir. 2014).
Zarda contends that the district court improperly admitted evidence concerning an occasion, nine years earlier, on which Zarda had been terminated from Altitude Express. As an initial matter, Zarda does not clearly identify the evidence he believes was improperly admitted, or why it was prejudicial. In any event, as the district court observed, evidence relating to the circumstances of an employee’s previous termination is relevant to determining the circumstances of the same employee’s later termination. Zarda has not shown that any prejudice substantially outweighed the relevance of this evidence. Accordingly, we see no abuse of discretion.
The district court also admitted deposition testimony in which Zarda acknowledged that there was a (small) possibility that the cause of his termination in 2001 was his filing for Worker’s Compensation benefits. Assuming that this statement was prejudicial, any prejudice was negligible.
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Zarda stated at deposition that Worker’s Compensation might have played no more than a minimal role in his firing; moreover, Zarda’s supervisor testified that he knew it would be illegal to fire someone for seeking Worker’s Compensation benefits, and that he did not fire Zarda for this reason.
B
Witness List. Zarda argues that the defendants hindered Zarda’s trial preparation by listing dozens more proposed witnesses in the parties’ joint pretrial order than the defendants intended to call. Zarda apparently argues that the district court should have precluded the defense witnesses from testifying, pursuant to Rules 26 and 37(c)(1) of the Federal Rules of Civil Procedure.
Even when Rule 37(c)(1) allows for witness preclusion, preclusion is not mandatory. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006). Here the district court had good reason to allow the testimony. The court found that the evidence was important, that Zarda had some notice regarding the potential testimony, and that there was no indication that the defendants had engaged in improper gamesmanship. We review a district court’s decision to preclude testimony based on Rule 37(c)(1) for abuse of discretion, and we see none here. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
C
Appeals to Prejudice. Zarda contends that defense counsel improperly influenced the jury by appealing to prejudice against homosexuals. On review, we consider whether the district court abused discretion by failing to grant relief. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). Zarda is entitled to a new trial “only if [opposing] counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury.” Id. at 127 (quoting Matthews v. CTI Container Transp. Int’l, Inc., 871 F.2d 270, 278 (2d Cir. 1989)).
Although Zarda complains of several allegedly offensive remarks, the context of each comment suggests that the statements were not improper
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references to stereotypes. For example, Zarda argues that counsel’s description of the relationship between Zarda and one of his witnesses as “odd” is prejudicial. However, the witness was testifying in support of Zarda’s claim for emotional damages, and defense counsel made this comment while trying to downplay the closeness of Zarda’s relationship with the witness in order to make the jury skeptical of the witness’s knowledge of Zarda’s emotional state. The district court held that the characterization of the relationship as “odd” was a fair argument that went to the credibility of the witness. Zarda has not shown that the district court’s ruling was an abuse of discretion or an “error[] . . . that w[as] ‘clearly prejudicial to the outcome of the trial;’” consequently, he is not entitled to a new trial. Marcic, 397 F.3d at 124 (quoting Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)).
CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.
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3 1

2

3

RULING ON RENEWAL OF TITLE VII CLAIM

4

BASED ON BALDWIN V. FOXX

5 10/13/15
6

7

8

9

10

11

12

13

14

THE COURT:

15

16

Last week I said I didn't want to -- I had a

17 jury trial going on, I didn't want to place the reason for

18 my denial of the motion for reconsideration by plaintiff

19 to either reinstate the Title VII claim or to what the

20 jury decided in the event that the Second Circuit changes

21 its precedent with respect to that issue. I want to place

22 my reasoning on the record.

23

The Second Circuit has in a published decision,

24 Simonton v. Runyon, 232 F.3d 33, Second Circuit 2000 case,

25 concluded that Title VII does not prohibit discrimination

Stephanie Picozzi, CRR, RPR Official Court Reporter

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4 1 based on sexual orientation in a non-published summary

2 order. The Second Circuit affirmed a District Court

3 decision in 2008 reaching the same conclusion based upon

4 Runyon. That case is Kiley v. American Society for

5 Prevention of Cruelty to Animals, 296, Fed. Appx, 107 at

6 page 109, Second Circuit 2008. And I believe Runyon

7 continues to be binding precedent on this Court

8 notwithstanding the recent EEOC advisory opinion that

9 reaches a different conclusion.

10

Until the Second Circuit overrules the binding

11 precedent, I believe a District Court must follow Runyon

12 and, therefore, the motion for reconsideration is denied

13 to the extent the request was to put it before the jury so

14 potentially there wouldn't have to be a retrial if the

15 Second Circuit were to conclude differently and overrule

16 Runyon. I don't believe in this case I should be putting

17 a claim before a jury that as the law currently stands

18 does not exist in the Second Circuit at least. So I'm

19 denying -- in my discretion, I'm not going to do that.

20 I'm denying the motion.

21

22

23

24

25

Stephanie Picozzi, CRR, RPR Official Court Reporter

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DONALD ZARDA,

Civil No. 10-CV-04334-JFB-GRB

Vs.
ALTITUDE EXPRESS, INC., ET d/b/a Skydive Long Island

AL,.

824 Federal Plaza Central Isl , NY
March 28, 2014

FILED CLERK
4/1/2014

Ray Maynard

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE

TRANSCRIPT OF TELEPHONIC HEARING BEFORE HONORABLE JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE

APPEARANCES:

For The Plaintiff:

GREGORY ANTOLLINO, ESQ. 276 Seventh Avenue. Suite 705 New York, NY 10001

For The Defendants: Altitude Express and Ray Maynard

ZABELL & ASSOCIATES BY: SAUL ZABELL, ESQ. One Corporate Drive Suite 103 Bohemia, NY 11716

Proceedings recorded by electronic sound recording, transcript produced by transcription service.

TERRY GRIBBEN'S TRANSCRIPTION SERVICE

27 Beach Road, Unit 4

Monmouth Beach, NJ 07750

(732) 263-0044

Fax No. 732-263-0075

800 603-6212

www.tgribbentranscription.com

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Decision

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THE CLERK: Calling Case 10-CV-4334, Zarda versus

2 Altitude Express. Please state your appearance for the record.

3

MR. ANTOLLINO: Gregory Antollino for plaintiff, good

4 afternoon, Your Honor.

5

THE COURT: Good afternoon, Mr. Antollino.

6

MR. ZABELL: And Saul Zabell for the defendants.

7 Good afternoon, Judge.

8

THE COURT: Good afternoon. As you know, I scheduled

9 this conference because I wanted to rule on the pending

10 motions. I decided, given that they have been now pending for

11 some time to place an oral ruling on the record. It’s possible

12 I may also do a written opinion on this, I haven’t decided

13 whether to or not yet, but I didn’t want the case to be delayed

14 further. So I’m going to place the ruling on the record. I

15 just ask you to bear with me, it should take about 10 or 15

16 minutes, and then we’ll discuss the next steps going forward.

17

So first just let me for the record state that the

18 standard I’m applying for summary judgment is set forth in an

19 opinion that I wrote several years ago, Zhao versus State

20 University of New York, 472 F Sup 2nd. 289 Eastern District of

21 New York (2007). I adopt that standard in its entirety, I

22 won’t repeat it here. In short with respect to summary

23 judgment obviously the facts are accepted as true and all

24 reasonable inferences are drawn in favor of the nonmoving

25 party.

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Decision

3

1

Here, we have cross motions for summary judgment so

2 when considering each motion I’m applying that standard for the

3 benefit of the nonmoving party. I also adopt as contained in

4 that opinion the framework for analyzing a gender

5 discrimination claim, which is similar both in the Federal law

6 and State law in terms of the McDonnell Douglas burden-shifting

7 analysis which I am applying here. And that case also dealt

8 with gender stereotyping. It has some case law with respect to

9 that as well, which is obviously part of the subject of this

10 suit.

11

So I adopt that standard in its entirety and I move

12 now to each of the claims. First, well, actually I should say

13 the threshold matter. There was a motion to strike a portion

14 of the reply memorandum of plaintiff’s partial summary judgment

15 motion because it raised the issue of sex discrimination

16 stereotyping, which was not the subject of the plaintiff’s

17 motion.

18

I’m denying the motion to strike, there was no

19 prejudice even by raising that. And in fact it was pretty much

20 the same arguments that had been made previously. So the

21 motion to strike it is denied. I have considered it, but it

22 hasn’t affected the ruling, again because it contained similar

23 arguments.

24

The Court will first address the gender

25 discrimination claim under Federal law for gender stereotyping.

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Decision

4

1 Having reviewed the evidence under the applicable standard I’m

2 granting the motion for summary judgment on that claim because

3 I find that the plaintiff has failed to meet even the prima

4 facie burden, as minimal as it is, that the adverse action gave

5 rise to an inference of discrimination based up gender

6 stereotyping.

7

But evening assuming arguendo the prima facie burden

8 was met, the defendants here articulated a nondiscriminatory

9 reason, namely the customer complaint about how the plaintiff

10 was touching her and I believe there was insufficient evidence

11 that the articulated reason was a pretext for gender

12 discrimination based upon stereotyping. Although for reasons

13 I’ll state in a moment when I get to the New York State claim,

14 I believe there is sufficient basis to have it go forward with

15 respect to a sexual orientation discrimination.

16

But sticking with the gender discrimination claim,

17 there were a number of theories that were, I guess three

18 theories that were asserted by plaintiff with respect to gender

19 discrimination based on stereotyping. I note that to some

20 extent I believe some of these theories are inconsistent with

21 each other and to some extent inconsistent with a sexual

22 orientation claim, and to some extent inconsistent with Mr.

23 Zardo’s deposition at page 215 where he indicated it was, Ray

24 fired me for being gay.

25

But in any event I have analyzed them independently

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Decision

5

1 of each other and I’ve even looked at them in conjunction to

2 the extent that that can be done. I’m just going to through

3 them.

4

The first theory I guess was that the plaintiff was

5 fired because of stereotyping that a male must be guilty of

6 sexual harassment if it is alleged. There’s simply no evidence

7 to believe that that stereotype was motivating Mr. Maynard in

8 this situation. There’s no, for example there’s no evidence of

9 comments, there’s no female comparators who were treated

10 differently. There is literally nothing to support that

11 theory.

12

The only thing that the plaintiff points to in the

13 papers, and this was discussed at oral argument, is what

14 plaintiff believes was a sloppy investigation in terms of the

15 interview of the plaintiff not allowing him a chance to see the

16 video and other issues with how the investigation was

17 conducted.

18

However, the law is clear that disputes about the

19 thoroughness of an investigation by itself cannot be enough to

20 create an inference of discriminatory intent. This case is no

21 exception to that. That’s actually set forth in a case that

22 the plaintiff cites in support of its position, Sassaman v.

23 Gamache, 566 F.3rd, 307. It’s a 2nd Circuit 2009 case where at

24 page 315 the 2nd Circuit states, “We emphasize that we do not

25 hold that an arguably insufficient investigation of a complaint

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Decision

6

1 of sexual harassment leading to an adverse employment action

2 against the accused is, standing alone, sufficient to support

3 an inference of discriminatory intent. Rather, we hold only

4 that where plaintiff can point to evidence closely tied to the

5 adverse employment action that could reasonably interpret it as

6 indicating that discrimination drove the decision, and arguably

7 insufficient investigation may support an inference of

8 discriminatory intent.”

9

So here, where there is nothing other as it relates

10 to this claim, no other evidence other than a dispute about the

11 thoroughness of the investigation, I conclude that that is not

12 sufficient to give rise to an inference of discrimination, and

13 certainly, certainly not sufficient to overcome the articulated

14 nondiscriminatory reason for the termination.

15

Sassaman obviously is clearly distinguishable from

16 this case because it wasn’t just a dispute about the adequacy

17 of the investigation, there was a direct comment by the

18 supervisor that you probably did what she said you did because

19 you’re male.

20

So obviously a completely different situation where

21 in addition to the investigation there was direct proof of

22 discriminatory intent based upon that comment. So I don’t

23 believe under that theory there’s any possibility that this

24 could survive summary judgment. And secondly, to the extent

25 the sloppy investigation I think was a separate theory, for the

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Decision

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1 reasons I just stated I don’t believe that the sloppy

2 investigation of itself can be sufficient to allow this claim

3 to, -- I should say the disputes about the sloppiness of the

4 investigation because the defendants have a different version

5 with respect to the investigation itself.

6

Moving to the other theory which is based on the, I

7 guess the plaintiff did not conform to male stereotyping, -- to

8 not conform to male stereotypes in terms of being teased about

9 wearing certain things, a pink hat and other similar types of

10 issues, the defendants noted as a threshold matter that Zarda

11 stated in his deposition that he was masculine in appearance.

12 But putting that issue aside, I don’t think that’s, the key

13 issue as it relates to this.

14

The key issue is that any teasing or comments with

15 respect to those types of items, there is no relationship, that

16 no rational Jury could draw any relationship to those, to the

17 termination decision. In terms of proximity to the adverse

18 action, there was no proximity. It’s clear what the proximity

19 and the adverse action with this whole issue with the customer,

20 which included the disclosure of the customer’s sexual

21 orientation, it had nothing to do with conforming to male

22 stereotypes in terms of what you may wear or how you may

23 behave, -- zero to do with that.

24

As Mr. Zabell noted in his papers also, Mr. Zardo was

25 rehired after these alleged incidents regarding what he was

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Decision

8

1 wearing. There’s simply no connection between those, no

2 possible connection that can be drawn by a rational Jury

3 between those events and the termination decision here.

4

So for all of those reasons I’m granting the motion

5 as it relates to the gender discrimination claim.

6

With respect to the State claims, first as a

7 jurisdictional matter the complaint does allege diversity of

8 jurisdiction. As was discussed at the oral argument, there was

9 no dollar amount in the amended complaint. Mr. Antollino did

10 put in a letter articulating why he believes the $75,000

11 threshold had been surpassed. And I conclude based upon that

12 letter that there is a good faith basis for him to allege that

13 based upon the categories of damages that he outlined. And

14 therefore, I believe that the jurisdictional requirement for

15 diversity of citizenship is met.

16

I will ask him at the conclusion of this to amend the

17 complaint as a technical matter to put in the allegation of, in

18 excess of $75,000. So I will move to the State law claims, the

19 sexual orientation claim, the defendant’s motion for summary

20 judgment on that is denied for the following reasons.

21

The plaintiff’s evidence, unlike the gender

22 discrimination claim, in addition to disputing the adequacy of

23 the investigation itself, the plaintiff has several other

24 pieces of evidence that they point to with respect to that that

25 I believe are more than sufficient to create a genuine issue of

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Decision

9

1 fact that must be resolved at trial, including primarily, I

2 guess most significantly the timing of the disclosure of sexual

3 orientation to the customer and the termination was obviously

4 in very close proximity and was the subject of the interactions

5 between Mr. Zardo and Mr. Maynard.

6

So I think that is another, -- is one piece of

7 evidence that certainly can be relied on with respect to the

8 sexual orientation claim. There are some other pieces of

9 information or evidence that if credited and drawn most

10 favorably to the plaintiff could also be utilized to support

11 that claim. There’s this issue regarding another employee, I

12 think it was Weinstock if my memory is correct, who disclosed

13 in some manner being heterosexual during a jump and there was

14 no adverse action taken with respect to that.

15

Obviously I know the defendants argue the

16 circumstances were different than alleged to an allegation of

17 improper touching. But in any event, again this has to be

18 construed most favorably to the plaintiff. With respect to the

19 defendant’s motion it is something that they could as part of

20 their other evidence utilize for the purpose of creating a

21 genuine issue of fact.

22

There is some evidence that, in the unemployment form

23 that the reason for the termination was not completely

24 consistent with the reasons given at other times. And I

25 believe that all of these things, while each of these things in

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Decision

10

1 isolation would not be sufficient, I believe together they are

2 certainly sufficient to create an issue of fact or whether the

3 termination was because of the articulated nondiscriminatory

4 reason given by the defendants of a customer complaint about

5 discomfort and being touched by the plaintiff during the jump

6 or whether he was terminated because of the sexual orientation,

7 or the disclosure of his sexual orientation by the plaintiff.

8

So the defendant’s motion on the State law claim for

9 sexual orientation discrimination is denied. And similarly,

10 the plaintiff’s cross motion for summary judgment on the sexual

11 orientation claim is denied. Looking, again, now looking at

12 the evidence from the defendant’s standpoint most favorably for

13 purpose of the plaintiff’s motion, it’s undisputed that a

14 customer complaint was made.

15

While there’s a dispute about whether it should have

16 been sufficient for the termination or not, -- certainly the

17 fact that a complaint was made does provide some support for

18 the defendant’s position. There was some investigation done,

19 it wasn’t an immediate termination, it was a suspension with

20 some discussion with the plaintiff. And again, while there’s a

21 dispute about whether that was sufficient under the

22 circumstances of that, -- if that’s construed most favorably to

23 the defendant it certainly creates enough of an issue of fact

24 with regard to his intent to preclude summary judgment in the

25 plaintiff’s favor on this.

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Decision

11

1

And there’s also evidence that there was knowledge of

2 the plaintiff’s sexual orientation far before this event

3 transpired. Obviously that doesn’t address the issue of

4 whether or not the disclosure of the sexual orientation was the

5 basis for the discriminatory act that’s alleged, -- but as the

6 issue of whether or not it was over the sexual orientation

7 itself, certainly that evidence would support the defendant’s

8 position.

9

So the evidence in the record if construed most

10 favorably to the defendant is certainly sufficient to overcome

11 plaintiff’s motion for summary judgment on the issue of whether

12 or not the articulated reason, the articulated

13 nondiscriminatory reason was the real reason for the

14 termination.

15

Turning briefly to the hostile work environment

16 claim, again, that standard is set forth in Zhao. I won’t

17 repeat it here, but the isolated incidents related to the

18 comments about what the plaintiff was wearing or behavior, or

19 similar things of that nature are, it’s not even close to being

20 sufficiently pervasive or severe to possibly have a Jury

21 rationally conclude that it was a hostile work environment.

22

This issue is about, -- this case is about the

23 termination, it’s not about a hostile work environment. So the

24 motion is granted with respect to that.

25

Turning to the wage claim, I’m denying the cross

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Decision

12

1 motions on the wage claim, because the record, the Court just

2 can’t discern from the record, again construing it most

3 favorably to the nonmoving party in each situation, whether or

4 not this can be resolved as a matter of law, based upon the

5 facts that are in, that have been submitted in the summary

6 judgment motion. Certainly, the defendants have attached

7 records which accredited would allow them to prevail on this

8 claim. And so that’s why the plaintiff’s motion for this is

9 denied.

10

But I’m also denying the defendant’s motion because

11 there’s some disputes about the adequacy of the record keeping

12 about, there’s a dispute about whether the plaintiff was

13 required to be there in the vicinity of the location for

14 certain periods of time. And I believe that the Zarda

15 affirmation that was submitted in opposition on April 8, 2013,

16 is sufficient to at least create an issue of fact that this

17 can’t be resolved at summary judgment. Although it does not

18 seem to be a particularly strong claim, I believe it’s

19 sufficient to survive summary judgment.

20

The overtime claim, plaintiff did not even separately

21 brief the overtime issue and I’m granting summary judgment on

22 the overtime issue because I don’t see any evidence that would

23 support an overtime claim under New York law as opposed to a

24 minimum wage claim.

25

So the cases that survive, excuse me, the claims

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Decision

13

1 that survive summary judgment are the sexual orientation claim

2 under New York law as well as the minimum wage claim under New

3 York law. And those are the claims that will proceed to trial.

4

Okay, so Mr. Antollino, I am just going to ask that

5 you formally just, I guess it would be the second amended

6 complaint.

7

MR. ANTOLLINO: Certainly.

8

THE COURT: I’m sorry, what did you say?

9

MR. ANTOLLINO: Certainly.

10

THE COURT: What did you say, Mr. Antollino?

11

MR. ANTOLLINO: I’m sorry? No, I just said

12 certainly.

13

THE COURT: Okay. So just put that in for a week

14 from today, and Mr. Zabell, you can just file another answer.

15

MR. ZABELL: Your Honor, if I may, we had discussed

16 at our last conference that if Your Honor’s decision did in

17 fact come down the way it came down today that I would be given

18 an opportunity to brief the issue based upon the deposition

19 testimony and the discovery documents that Mr. Zarda turned

20 over that they do not meet the 75,000 jurisdictional

21 requirement.

22

THE COURT: Okay. Well, if, if, I’m not going to let

23 that the way everything else that we’re going to do, because

24 the case has been around for too long. So I will let you put

25 something in. But what I’m going to do is I’m going to have

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Decision

14

1 them put in the amended complaint, if you believe that there’s

2 not a good faith basis based upon the letter that he submitted,

3 I think it was June 13 or something like that where he put in

4 the various categories of damages. I guess in lieu of an

5 answer you could file a motion to dismiss on jurisdictional

6 grounds, okay.

7

MR. ANTOLLINO: Judge, and just to be clear, the

8 standard is not whether or not the damages are provable, but

9 whether there is a good faith basis to allege them.

10

THE COURT: Yes. I know that standard, I’ve been

11 through it a few times.

12

MR. ANTOLLINO: I just wanted to make it clear as to

13 all parties that if there were any motion it would be that I do

14 not have a good faith basis --

15

THE COURT: Right.

16

MR. ANTOLLINO: -- to assert this. Not that it’s not

17 going to be provable. It’s not a summary judgment motion --

18

THE COURT: Right.

19

MR. ANTOLLINO: It would be I do not have a good

20 faith basis to pay it.

21

THE COURT: Right. That’s why I thought your letter

22 was, you know, very detailed in terms of looking at other cases

23 in terms of emotional damages and things like that, of what a

24 good faith potential recovery would be. So I think Mr. Zabell,

25 as you probably gathered, you have a real uphill battle on

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Decision

15

1 that, but I won’t prevent you from, -- I said I would give you

2 a chance and I think you’re entitled to a chance. So if you

3 want to put in, but I am going to ask that you put that in, you

4 know, quickly. And then I’ll give Mr. Antollino a chance to

5 respond to that, okay.

6

MR. ANTOLLINO: Thank you, Judge.

7

THE COURT: So I mean, do you want to set a motion

8 schedule for that now, then, Mr. Zabell, since I have you? Do

9 you want to just do that?

10

MR. ZABELL: Yeah, that, I can get 15 days, Judge?

11

THE COURT: Yes. So then Mr. Antollino will put it

12 in by April 4. And then 15 days would be, that would be a

13 weekend --

14

MR. ZABELL: Wait, wait.

15

THE COURT: April 21?

16

MR. ZABELL: Wait, I’m sorry, Judge, 15 days is,

17 that’s going to take me to, let’s see. That’s not going to

18 take me to April 4, that will take me --

19

MR. ANTOLLINO: I’m going to put in the amended

20 complaint toot sweet. So you know, it will be 15 days from the

21 day that I put in the amended complaint, not April 4. I mean,

22 I really feel that if Mr. Zabell is actually going to pursue

23 this motion it’s not only a waste of his client’s money, it’s a

24 waste of the Court’s time. And I’ll look at it very carefully,

25 but I have, I’ve made a thorough letter on that point because I

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Decision

16

1 knew I was correct on this and I think that if Mr. Zabell is

2 going to waste his client’s money and the Court’s time he’d

3 better have a good faith basis to make the argument that I

4 don’t have a good faith basis to say that this could happen.

5

So I may make a, I may decide to make a cross motion

6 for sanctions if we have to waste our time on a point which is

7 really theoretical, not something that I have to prove.

8 Theoretically I can get more than $75,000 on this case. It’s

9 not going to the Jury now and it’s not, it’s not even summary

10 judgment. It’s just me having a good faith basis. So what

11 he’s arguing is that I am in fact, -- have a bad faith argument

12 by making his argument that I don’t have a good faith basis.

13

THE COURT: Okay. Let’s just get it scheduled, Mr.

14 Antollino, okay. You can make a cross motion, you can make

15 whatever motion you’d like to, but let’s, so you said you’re

16 going to put it in Monday then? The amended complaint?

17

MR. ANTOLLINO: Yeah, I’ll put it in, I’ll put it in

18 this weekend.

19

THE COURT: Okay. So if he puts it in this weekend,

20 Mr. Zabell, do you want 15 days then from Monday?

21

MR. ZABELL: Yes, please.

22

THE COURT: So we’ll say, that would be, say April

23 15. How long do you want to respond? Mr. Antollino, if you,

24 if you believe that you’ve covered this in your letter you can

25 just submit a letter to me saying you’re relying on your

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Decision

17

1 previous submission, you don’t have to write up something, you

2 know, you don’t have to repeat what you said previously, okay?

3

MR. ANTOLLINO: Okay, all right.

4

THE COURT: So how long do you want?

5

MR. ZABELL: Well, give me ten days from his

6 response.

7

THE COURT: Okay. So April 25 will be the

8 opposition, and then a week for any reply, Mr. Zabell?

9

MR. ZABELL: That will be sufficient, thank you,

10 Judge.

11

THE COURT: Okay, so that’s May 2. I won’t have an

12 argument on this because I think it’s a fairly straightforward

13 issue. Unless I have questions I’ll just, I’ll either do what

14 I did today where I’ll have a phone conference and I’ll rule on

15 it, or I’ll issue a short order, okay.

16

But in terms of the, it’s not, just to mention, Mr.

17 Antollino this is not going to affect obviously the trial date

18 in this case because we weren’t going to have the trial that

19 soon anyway. So the, what I’ll do is I’ll make the pretrial

20 order due, it shouldn’t be too complicated, maybe 30 days from

21 May 2 then?

22

MR. ZABELL: That’s fine.

23

MR. ANTOLLINO: I can work with that, Your Honor.

24

THE COURT: So we’ll say June 2, pretrial order. And

25 then within 10 days of that we’ll have a call to set a trial

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Decision

18

1 date, which I anticipate would be in the all, okay?

2

MR. ZABELL: Okay. Your Honor, there is one last

3 thing, and I bring it up as much for humor’s sake as anything

4 else. But I can say in every conference that I’ve had with Mr.

5 Antollino, Mr. Antollino has brought up the issue of seeking

6 sanctions against me. I just, I bring it up for comedy’s sake,

7 it’s Friday afternoon. I just think it’s, it’s well worth

8 noting.

9

MR. ANTOLLINO: I’d like to bring up a little comedy.

10 One of the World Trade Center jumpers from this week was

11 actually one of the witnesses mentioned in the pretrial

12 although disclosures, although he never put in an affidavit or

13 was deposed. So that’s some real comedy.

14

THE COURT: All right. I don’t think we need any

15 more comedy, okay.

16

MR. ANTOLLINO: Okay. Who’s the reporter on this?

17

THE COURT: I’m sorry, what did you say?

18

MR. ANTOLLINO: The court reporter, the court

19 reporter?

20

THE COURT: Oh, there is no court reporter here. We

21 put this on the, this is being recorded digitally. So if you

22 want to order the transcript just contact my deputy and she’ll

23 tell you who in the clerk’s office, -- or it’s in our rules I

24 guess, too, who in the clerk’s office you can call to order it.

25 They send it out to an agency and they produce the transcript,

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Decision

19

1 okay.

2

MR. ANTOLLINO: Okay.

3

THE COURT: Okay, thank you, counsel, have a good

4 weekend.

5

MR. ANTOLLINO: Thank you, bye.

6

MR. ZABELL: Everybody have a good weekend.

7

*

*

*

8

C E R T I F I C A T I O N

9

10

I, TRACY GRIBBEN, court approved transcriber,

11 certify that the foregoing is a correct transcript from the

12 official electronic sound recording of the proceedings in the

13 above-entitled matter.

14

15 ______________________________

16 /S/ TRACY GRIBBEN

17 TERRY GRIBBEN’S TRANSCRIPTION SERVICE DATE: April 1, 2014

18

19

20

21

22

23

24

25

(SPA) 084

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3 1

2

3

RULING ON RENEWAL OF TITLE VII CLAIM

4

BASED ON BALDWIN V. FOXX

5 10/13/15
6

7

8

9

10

11

12

13

14

THE COURT:

15

16

Last week I said I didn't want to -- I had a

17 jury trial going on, I didn't want to place the reason for

18 my denial of the motion for reconsideration by plaintiff

19 to either reinstate the Title VII claim or to what the

20 jury decided in the event that the Second Circuit changes

21 its precedent with respect to that issue. I want to place

22 my reasoning on the record.

23

The Second Circuit has in a published decision,

24 Simonton v. Runyon, 232 F.3d 33, Second Circuit 2000 case,

25 concluded that Title VII does not prohibit discrimination

Stephanie Picozzi, CRR, RPR Official Court Reporter

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4 1 based on sexual orientation in a non-published summary

2 order. The Second Circuit affirmed a District Court

3 decision in 2008 reaching the same conclusion based upon

4 Runyon. That case is Kiley v. American Society for

5 Prevention of Cruelty to Animals, 296, Fed. Appx, 107 at

6 page 109, Second Circuit 2008. And I believe Runyon

7 continues to be binding precedent on this Court

8 notwithstanding the recent EEOC advisory opinion that

9 reaches a different conclusion.

10

Until the Second Circuit overrules the binding

11 precedent, I believe a District Court must follow Runyon

12 and, therefore, the motion for reconsideration is denied

13 to the extent the request was to put it before the jury so

14 potentially there wouldn't have to be a retrial if the

15 Second Circuit were to conclude differently and overrule

16 Runyon. I don't believe in this case I should be putting

17 a claim before a jury that as the law currently stands

18 does not exist in the Second Circuit at least. So I'm

19 denying -- in my discretion, I'm not going to do that.

20 I'm denying the motion.

21

22

23

24

25

Stephanie Picozzi, CRR, RPR Official Court Reporter

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3 1

2

3

RULING ON RENEWAL OF TITLE VII CLAIM

4

BASED ON BALDWIN V. FOXX

5 10/13/15
6

7

8

9

10

11

12

13

14

THE COURT:

15

16

Last week I said I didn't want to -- I had a

17 jury trial going on, I didn't want to place the reason for

18 my denial of the motion for reconsideration by plaintiff

19 to either reinstate the Title VII claim or to what the

20 jury decided in the event that the Second Circuit changes

21 its precedent with respect to that issue. I want to place

22 my reasoning on the record.

23

The Second Circuit has in a published decision,

24 Simonton v. Runyon, 232 F.3d 33, Second Circuit 2000 case,

25 concluded that Title VII does not prohibit discrimination

Stephanie Picozzi, CRR, RPR Official Court Reporter

(SPA) 087

Case 15-3775, Document 365-1, 06/28/2017, 2067709, Page96 of 97

4 1 based on sexual orientation in a non-published summary

2 order. The Second Circuit affirmed a District Court

3 decision in 2008 reaching the same conclusion based upon

4 Runyon. That case is Kiley v. American Society for

5 Prevention of Cruelty to Animals, 296, Fed. Appx, 107 at

6 page 109, Second Circuit 2008. And I believe Runyon

7 continues to be binding precedent on this Court

8 notwithstanding the recent EEOC advisory opinion that

9 reaches a different conclusion.

10

Until the Second Circuit overrules the binding

11 precedent, I believe a District Court must follow Runyon

12 and, therefore, the motion for reconsideration is denied

13 to the extent the request was to put it before the jury so

14 potentially there wouldn't have to be a retrial if the

15 Second Circuit were to conclude differently and overrule

16 Runyon. I don't believe in this case I should be putting

17 a claim before a jury that as the law currently stands

18 does not exist in the Second Circuit at least. So I'm

19 denying -- in my discretion, I'm not going to do that.

20 I'm denying the motion.

21

22

23

24

25

Stephanie Picozzi, CRR, RPR Official Court Reporter

(SPA) 088

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------X

ESTATE OF DONALD ZARDA, Plaintiff
-against-
ALTITUDE EXPRESS INC., ET AL. Defendants.
-----------------------------------------------------X

JUDGMENT IN A CIVIL CASE Case Number: CV-10-4334

X Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried, and the jury has rendered its verdict.

____ Decision by Court. This action came to trial/hearing before the Court. The issues have been tried/heard, and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the plaintiff, estate of Donald Zarda, take nothing of the defendants, Altitude Express Inc. and Raymond Maynard, and that the action be dismissed on the merits.

Dated: Central Islip, New York October 28, 2015

DOUGLAS C. PALMER Clerk of Court

/S/ By: Michele Savona Deputy Clerk

(SPA) 089

Case 15-3775, Document 365-2, 06/28/2017, 2067709, Page1 of 1
June 28, 2017 Catherine O’Hagan Wolfe Clerk of Court Second Circuit Court of Appeals 40 Foley Square New York, NY 10007 Re: Zarda v. Altitude Express, 15-3775 To the Clerk of Court or to Whom it May Concern:
I, on behalf of Plaintiff-Appellant, filed a brief and special appendix with incorrect pagination and several purely typographical errors. I called the case manager yesterday about bouncing the brief to refile it, but in the interest of finishing the matter, I have jumped the gun. It is my understanding that no motion is required for a brief that corrects purely typographical errors, however, if I am incorrect, I expect someone will contact me. The original hard copies were served by overnight mail on June 26. If this brief is not bounced (which again makes no substantive changes), I will hand deliver the corrected briefs by Friday. Sincerely, Greg S. Antollino Gregory Antollino cc: all parties by ecf

 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
_____________________

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., d/b/a SKYDIVE LONG ISLAND; and RAY MAYNARD,

_____________________

Defendants-Appellees.

On Appeal from the U.S. District Court for the Eastern District of New York Hon. Joseph Bianco, Judge _____________________

BRIEF OF THE NATIONAL EDUCATION ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL
____________________________________________

ALICE O’BRIEN

ERIC A. HARRINGTON

MARY E. DEWEESE*

NATIONAL EDUCATION ASSOCIATION

1201 16th Street, N.W.

Washington, DC 20036-3290

(202) 822-7018

*Admission pending

eharrington@nea.org

Counsel for Amicus Curiae National Education Association

CORPORATE DISCLOSURE STATEMENT Amicus curiae National Education Association (“NEA”) has no parent corporations, does not have shareholders, and does not issue stock.
ii

TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ........................................................ ii TABLE OF CONTENTS......................................................................................... iii TABLE OF AUTHORITIES ................................................................................... iv STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE..........1 SUMMARY OF ARGUMENT .................................................................................2 ARGUMENT .............................................................................................................7
I. Throughout American history, sex discrimination against teachers— including and particularly sex discrimination against gay and lesbian teachers—has been motivated by a desire to enforce and perpetuate certain gender norms. ................................................................................................7 A. Women are allowed into teaching ................................................9 B. Pregnancy-based sex discrimination targets teachers ................14 C. Gay and lesbian teachers face pernicious sex discrimination ....15
II. Gay and lesbian teachers, in particular, have suffered great harm as a result of sex discrimination in school employment...............................................19
III. Gay and lesbian students would benefit from a ruling in Zarda’s favor and would be harmed by a contrary ruling.........................................................24
CONCLUSION ........................................................................................................27 CERTIFICATE OF COMPLIANCE.......................................................................29 CERTIFICATE OF SERVICE ................................................................................30
iii

TABLE OF AUTHORITIES CASES
Andrews v. Drew Mun. Separate Sch. Dist., 507 F.2d 611 (5th Cir. 1975) ........... 15 Bd. of Educ. of Highland Local Sch. Dist. v. U.S. Dep’t of Educ.,
208 F. Supp. 3d 850 (S.D. Ohio 2016) ................................................................ 24 Cannon v. Univ. of Chi., 441 U.S. 677 (1979) ....................................................... 24 Carcaño v. McCrory, 203 F. Supp. 3d 615 (M.D.N.C. 2016)................................ 24 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)............................ 4, 5, 7 Hively v. Ivy Tech Cmty. College, 853 F.3d 339 (7th Cir. 2017) ......................... 3, 5 Hollenbaugh v. Carnegie Free Library, 436 F. Supp. 1328 (W.D. Pa. 1977),
aff'd, 578 F.2d 1374 (3d Cir. 1978)...................................................................... 15 Lawrence v. Texas, 539 U.S. 558 (2003).......................................................... 23, 24 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)...................................... 4 The Nat’l Gay Task Force v. Bd. of Educ. of Oklahoma City, 729 F.2d 1270 (10th
Cir. 1984), aff’d by an equally divided Court, 470 U.S. 903 (1985) ............. 21, 22 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)................................................. 4 Romer v. Evans, 517 U.S. 620 (1996) .................................................................... 22 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ............................................ passim Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ............................... 5 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015). ............ 4, 24 Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998)........................... 18
iv

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-3522 2017 WL 2331751, __ F.3d __ (7th Cir. May 30, 2017)..................................... 24
Young v UPS, 135 S. Ct. 1338 (2015) ...................................................................... 4
RULES
Fed. R. App. P. 29(a)(4)(E)....................................................................................... 1
Fed. R. App. P. 29(b) ................................................................................................ 2
2d Cir. R. 29.1(b) ...................................................................................................... 1
OTHER AUTHORITIES
Kate Abbey-Lambertz, Supporters Rally for Lesbian Teacher Who Was Fired After Getting Pregnant, HuffPost (Sept. 8, 2014), http://www.huffingtonpost.com/2014/09/08/barb-webb-gay-firedmarian_n_5784450.html ................................................................................ 23, 24
Meredith Bennett-Smith, Carla Hale, Gay Teacher, Fired from Catholic High School After Being ‘Outed’ by Mother’s Obituary, HuffPost (Apr. 18, 2013), http://www.huffingtonpost.com/2013/04/18/carla-hale-gay-fired-teachercatholic-high-school_n_3103853.html ................................................................ 23
Jackie M. Blount, Fit to Teach (2005)............................................................. passim
Jackie M. Blount, Spinsters, Bachelors, and Other Gender Transgressors in School Employment, 1850–1990, 70 Rev. Educ. Res. 83 (2000) ............................. passim
Jackie M. Blount, W.W.II and the Great Gender Realignment of School Administration (1999) .................................................................................... 18, 19
Max Brantley, Mount St. Mary Teacher Fired for Marrying Her Female Partner, Ark. Times (Oct. 17, 2013), https://www.arktimes.com/ArkansasBlog/archives/2013/10/17/human-rightscampaign-says-mount-st-mary-prepared-to-fire-gay-teacher-for-marrying.......... 2
v

Emma Brown, Education Dept. Closes Transgender Student Cases As It Pushes to Scale Back Civil Rights Investigations, Wash. Post (June 17, 2017), https://goo.gl/BJ4Tf7 ........................................................................................... 25
Civil Rights Div., U.S. Dep’t of Justice & Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf25
Dudley Clendinen & Adam Nagourney, Out for Good (1999) ........................ 21, 22
Rebecca Priegert Coulter & Margaret McNay, Exploring Men’s Experiences as Elementary School Teachers, 18 Can. J. Educ. 398 (1993)................................. 19
Hazel Davis & Agnes Samuelson, Women in Education, 6 J. Soc. Issues 25 (1950) ................................................................................................... 10
Todd A. DeMitchell, Suzanne Eckes & Richard Fossey, Sexual Orientation and the Public School Teacher, 19 B.U. Pub. Int. L.J. 65 (2009) .............................. 28
Suzanne E. Eckes & Martha M. McCarthy, GLBT Teachers: The Evolving Legal Protections, 45 Am. J. Educ. Res. Ass’n 530 (2008) .................................... 17, 24
Timothy Egan, Oregon Measure Asks State to Repress Homosexuality, N.Y. Times (Aug. 16, 1992) .................................................................................................... 22
Kate Fagan & Luke Cyphers, The Glass Wall, ESPN.com, http://www.espn.com/espn/eticket/story? page=theGlassWall (last accessed June 21, 2017)............................................................................................................... 18
Paul D. Flaspohler et al., Stand By Me: The Effects of Peer and Teacher Support in Mitigating The Impact of Bullying on Quality of Life, 6 Psych. in Schs. 636 (2009) ............................................................................................................. 26, 27
Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012) .............................................................................. 5
Catherine Gewertz, Fired Beverly Hills Superintendent Claims Anti-Gay Bias, Educ. Week (Mar. 8, 2000), http://www.edweek.org/ew/articles/2000/03/08/26gay.h19.html........................ 23
vi

Dana Goldstein, The Teacher Wars (2014) ........................................................ 9, 10
Karen L. Graves, And They Were Wonderful Teachers (2009)....................... passim
Anne Gregory, Rethinking Homophobia in Sports: Legal Protections for Gay and Lesbian Athletes and Coaches, 1 DePaul J. Sports L. & Contemp. Probs. 264 (2004) ................................................................................................................... 18
Karen M. Harbeck, Gay and Lesbian Educators (1997) ................................. passim
Suzanne Howard, Nat’l Council of Admin. Women in Educ., Why Aren’t Women Administering Our Schools? (1975) .................................................................... 10
Taica Hsu, How I Support LGBTQ+ Students at My School, Am. Educator, Winter 2016–2017............................................................................................................ 26
Human Rights Watch, “Like Walking Through a Hailstorm” (Dec. 7, 2016), https://www.hrw.org/sites/default/files/report_pdf/uslgbt1216web_2.pdf.......... 27
Ilya A. Iussa, Pregnant Pause, 15 Scholar 745 (2013) .................................... 13, 14
Susan Donaldson James, Why Men Don’t Teach Elementary School, ABC News (Mar. 25, 2013), http://abcnews.go.com/Health/men-teach-elementaryschool/story?id=18784172. .................................................................................. 19
Michelle Kahn & Paul C. Gorski, The Gendered and Heterosexist Evolution of the Teacher Exemplar in the United States, 18 Int’l J. Multicultural Educ. 15 (2016) ....................................................................................................... passim
Rachael Knight, From Hester Prynne to Crystal Chambers: Unwed Mothers, Authentic Role Models, and Coerced Speech, 25 Berkeley J. Emp. & Lab. L. 481 (2004).......................................................... 15
Joseph G. Kosciw et al., GLSEN, The 2015 National School Climate Survey (2016) ............................................................................................................. 25, 27
Amanda Machado, The Plight of Being a Gay Teacher, The Atlantic (Dec. 16, 2014), https://www.theatlantic.com/education/archive/2014/12/the-plight-ofbeing-a-lgbt-teacher/383619/ ......................................................................... 20, 27
vii

Elizabeth J. Meyer, Gendered Harassment in Secondary Schools, 20 J. Gender & Educ. 555 (2008) .................................................................................................. 27
Michelle Morgan, “A Touch of Risquity,” in American Educator in Popular Media (Sevan G. Terzian & Patrick A. Ryan, eds., 2015).......................................... 8, 10
Corrine Muñoz-Plaza, Sandra Crouse Quinn & Kathleen A. Rounds, Lesbian, Gay, Bisexual and Transgender Students: Perceived Social Support in the High School Environment, 85 High Sch. J. 52 (2002).............................................................. 27
Nat’l Educ. Ass’n, Research Brief: Importance of School Climate (2013), https://www.nea.org/assets/docs/15584_Bully_Free_Research_Brief-4pg.pdf .. 26
Nat’l Sch. Climate Ctr., School Climate Research Summary (August 2012), https://www.schoolclimate.org/climate/documents/policy/sc-brief-v3.pdf ........ 26
Nat’l Sch. Climate Ctr., The School Climate Challenge (2007), http://www.schoolclimate.org/climate/documents/policy/school-climatechallengeweb.pdf ................................................................................................. 26
Anthony Niedwiecki, Save Our Children, 21 Duke J. Gender L. & Pol’y 125 (2013) ...................................... 16, 17, 21, 22
Or. Blue Book, Initiative, Referendum and Recall: 1988-1995 (2017), http://bluebook.state.or.us/state/elections/elections21.htm ................................. 22
David Osher et al., Improving Academic Achievement Through Improving School Climate and Student Connectedness (Apr. 14, 2009), https://goo.gl/4nCGPJ .... 26
David Wilbur Peters, The Status of the Married Woman Teacher (1934) ............. 11
Kate Rousmaniere, Looking at the Man in the Principal’s Office, in American Education in Popular Media (Sevan G. Terzian & Patrick A. Ryan, eds., 2015) ....................................................................................................................... passim
Kate Rousmaniere, The Principal’s Office (2013) ................................................. 19
Michael J. Sedlak, A History of Teachers and Teaching in America, in Encyclopedia of Educational Research (M.C. Alkin, ed., 6th ed.
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1992)........................................................................................................... 9, 10, 11 Avi Selk, A Teacher’s Decision To Be ‘Visibly Queer’ in His Photo with President
Trump, Wash. Post, June 17, 2017, https://www.washingtonpost.com/news/education/wp/2017/06/17/a-teachersdecision-to-be-visibly-queer-in-his-photo-with-presidenttrump/?utm_term=.dbf5ae1016eb.......................................................................... 2 Patricia Cayo Sexton, The Feminized Male (1969) ................................................ 16 Nancy J. Smith et al., A National Study of LGBT Educators’ Perceptions of Their Workplace Climate (2008) ............................................................................. 23, 27 Amanda Terkel, Gay Teacher Fired After Posting Marriage Announcement on Facebook, HuffPost (Jan. 14, 2015), http://www.huffingtonpost.com/2015/01/14/lonnie-billiard_n_6472566.html ... 23 Katherine van Wormer & Robin McKinney, What Schools Can Do to Help Gay/Lesbian/Bisexual Youth: A Harm Reduction Approach, 38 Adolescence 409 (2003) ................................................................................................................... 27 Adam Voight, Gregory Austin & Thomas Hanson, A Climate for Academic Success (2013), http://files.eric.ed.gov/fulltext/ED559741.pdf .......................... 26 Willard Waller, The Sociology of Teaching (1932)................................................ 17 Beau Yarbrough, Lesbian Teacher Says She Was Fired for Helping LGBT Students, HuffPost (Nov. 20, 2013), http://www.huffingtonpost.com/2013/11/20/lesbian-teacher-firedlgbt_n_4309312.html ........................................................................................... 23
ix

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE This brief is submitted on behalf of the National Education Association
(“NEA”).1 NEA is the nation’s largest professional association representing over three million members, the vast majority of whom serve as educators, counselors, and education support professionals in our nation’s public schools. All told, nearly three-quarters of the nation’s public school teachers are members of NEA, and women comprise more than 70 percent of NEA members.
NEA recognizes the full dignity and humanity of all students and educators, and stands against discrimination based on race, gender, sexual orientation, gender identity, disability, ethnicity, immigration status, occupation, and religion. NEA believes that a great public school is a fundamental right of every child, and that our schools must be free from intimidation and harassment and safe for all students, including those who identify as gay, lesbian, bisexual, and transgender.
NEA has fought for the rights of women and gay and lesbian educators for decades. NEA had its first female president in 1910, and its first internal gay rights group in 1972, which persists to this day. But even today, our gay and lesbian members face discrimination on the basis of sex. This discrimination not only impacts our gay and lesbian members; it also has a negative impact on our 1 No party’s counsel authored this brief in whole or in part. No party, party’s counsel, or other person—other than amicus curiae, its members, or its counsel— has contributed money intended to fund preparing or submitting the brief. See Fed. R. App. P. 29(a)(4)(E); 2d Cir. R. 29.1(b).
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students, who see their gay teachers harassed or even fired. The narrow sex discrimination doctrine that excludes gay and lesbian teachers has had an impact on male and female teachers as well. NEA is steadfastly committed to eliminating sex discrimination from our schools, for both educators and students.
Amicus files this brief in support of Plaintiffs-Appellants as invited by this Court in its order for rehearing en banc. See Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017), ECF No. 271; see also Fed. R. App. P. 29(b).
SUMMARY OF ARGUMENT An educator can be married to her wife on Saturday and fired on Monday.2 An educator could be named teacher of the year, in part because of his LGBT advocacy and attend a White House ceremony in his honor on Friday, and be fired for his sexual orientation on Monday.3 This is not only morally wrong; it is illegal under Title VII of the Civil Rights Act of 1964. Amicus writes to make three arguments. First, sex discrimination as an historical matter has been motivated by a desire
2 See, e.g., Max Brantley, Mount St. Mary Teacher Fired for Marrying Her Female Partner, Ark. Times (Oct. 17, 2013), https://www.arktimes.com/ArkansasBlog/archives/2013/10/17/human-rightscampaign-says-mount-st-mary-prepared-to-fire-gay-teacher-for-marrying. 3 Cf. Avi Selk, A Teacher’s Decision To Be ‘Visibly Queer’ in His Photo with President Trump, Wash. Post, June 17, 2017, https://www.washingtonpost.com/news/education/wp/2017/06/17/a-teachersdecision-to-be-visibly-queer-in-his-photo-with-president-trump.
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to enforce gender norms, and those gender norms have always been bound up with ideas about the proper expressions of human sexuality and sexual orientation. Given that, the exclusion of gays and lesbians from the protection of federal law proscribing sex discrimination has never been justified because sexual orientation discrimination, just like other forms of sex discrimination, is—and always has been—motivated by a desire to enforce gender norms. Sexual orientation discrimination after all is, in the words of the Seventh Circuit, the “ultimate case of failure to conform to [a gender] stereotype”: for those who are motivated to discriminate against gays and lesbians, it is the failure to conform, for example, to the stereotype that men should love and couple with women and not other men that motivates the discrimination. See Hively v. Ivy Tech Cmty. College, 853 F.3d 339, 346 (7th Cir. 2017) (en banc).
This Court and others, however, have denied sex discrimination claims brought by gay and lesbian plaintiffs, reasoning that Title VII’s prohibition on sex discrimination reached only discrimination that divided men and women into two groups, perfectly differentiated along biological sex lines. See Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Because the term ‘sex’ in Title VII refers only to membership in a class delineated by gender . . . Title VII does not proscribe discrimination because of sexual orientation.”).
To be sure, courts have long been moving away from the notion that sex
3

discrimination is limited to dividing men and women into two groups. Federal courts now recognize—although they did not always—that sexual harassment discrimination, pregnancy discrimination, and sex stereotyping discrimination are all forms of sex discrimination. See generally Young v. UPS, 135 S. Ct. 1338 (2015) (pregnancy discrimination); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex stereotyping); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (sexual harassment). Yet this Court and others have tried to disentangle and distinguish sexual orientation discrimination from sex stereotyping discrimination, even while acknowledging that such a line is exceedingly difficult to draw. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23 (2d Cir. 2005) (rejecting a claim premised on gender stereotyping because it sounded too much like sexual orientation discrimination). But in reality, “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.” Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015).
These judicially constructed narrow views of sex discrimination continue to exert considerable influence on sex discrimination law. Those who advance these views often assert that they are putting forth the “traditional” notion of sex discrimination and that those who assert that sexual orientation discrimination is itself a form of sex discrimination are seeking to expand sex discrimination law in
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an ahistoricial or novel way. As Judge Sykes’s dissent in Hively asserts: the “original” meaning of “Title VII’s prohibition of discrimination ‘because of sex’ makes it unlawful for an employer ‘to discriminate against women because they are women and against men because they are men.’” See 853 F.3d at 363 (Sykes, J., dissenting) (quoting Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)); see generally Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012).
But, as this brief argues, this narrow version of sex discrimination is neither “traditional” nor rooted in history. This brief shows that Simonton, Dawson, and decisions like it fail to understand how sex discrimination, even as an historical matter, operates. As an historical matter, the line between sex discrimination and sexual orientation discrimination has never existed. This brief describes sex discrimination as it has existed against one particularly important group—teachers. From the beginning, it was understood that educators had a unique role in reflecting and perpetuating gender norms. Teachers, it has long been thought, both reflect the gender norms of society and have the power to influence the maintenance of such norms.
Because of this, teachers have faced waves of differing forms of sex discrimination—schools have, at various times, forbidden from teaching all women, all married women, all single women, all pregnant women, and all gays
5

and lesbians. Even straight men have been discriminated against for reasons having to do with gender norms and perceived homosexuality. While sex discrimination in teaching has manifested itself differently over the decades, its motivation has been remarkably consistent: the various regimes of sex discrimination were, and are about, ensuring that teachers reflect and perpetuate certain gender roles and norms, and these roles and norms are inevitably bound up with norms about human sexuality and sexual orientation.
Women were initially excluded from teaching to prevent them from competing with men for finite resources and so they could focus on home and domestic life; women were then allowed into the profession because of the stereotype that they are nurturing by nature; only single women were initially allowed to be teachers because married women had homebound duties; later, single women were not allowed into the profession due to the assumption that single women must be lesbians; gay men were excluded from the profession based on the notion that they would convert boys to become gay and forgo affection for girls; and all male teachers have, at times, been viewed with suspicion because their desire to teach itself may evidence being gay. Sex discrimination in education has never been about the kind of class segregation that Simonton envisions nor can it be distinguished from sexual orientation discrimination as Dawson envisions.
Second, the failure to recognize that sexual orientation discrimination is sex
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discrimination has harmed gay and lesbian educators in profound ways. Sexual orientation discrimination against teachers throughout American history has been particularly rampant, steady, and vicious. And it is long past time for these campaigns of discrimination to stop.
Third and finally, federal courts’ failure to uniformly recognize that sexual orientation discrimination is sex discrimination has harmed gay and lesbian students and a ruling concluding that Title VII prohibits sexual orientation discrimination will have a profound and positive impact on gay and lesbian students.
ARGUMENT I. Throughout American history, sex discrimination against teachers—
including and particularly sex discrimination against gay and lesbian teachers—has been motivated by a desire to enforce and perpetuate certain gender norms. “[S]chools have served as powerfully important institutions for reflecting, creating, enforcing, and restricting the gendered behavior and characteristics of both students and school workers and, by extension, of American culture.” Jackie M. Blount, Spinsters, Bachelors, and Other Gender Transgressors in School Employment, 1850–1990, 70 Rev. Educ. Res. 83, 85 (2000). Teachers have always been expected to serve as role models for the students they teach, see Karen L. Graves, And They Were Wonderful Teachers 139–40 (2009); see also Karen M. Harbeck, Gay and Lesbian Educators 114 (1997), and reflecting particular gender
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roles of the day has been just one facet. Teacher contracts have, among other things, forbidden romance and marriage, required the teaching of Sunday school, required teachers to sleep eight hours per night, and restricted theater attendance, dancing, gambling, drinking, and so on. Graves, supra, at 126; Harbeck, supra, at 20.
“[S]chools,” however, “also have been historically important sites for gender challenges and even rebellion.” Blount, Spinsters, supra, at 83. Women initially transgressed gender norms simply by becoming teachers. Id. at 87. It made remaining unmarried a viable option for many women, allowed women to gain economic independence, and led to the proliferation of housing options for unmarried adult women. Michelle Morgan, “A Touch of Risquity,” in American Educator in Popular Media 39–42 (Sevan G. Terzian & Patrick A. Ryan, eds., 2015); Blount, Spinsters, supra, at 87–88; Jackie M. Blount, Fit to Teach 52–54 (2005). Female teachers “challenged a social structure that identified wife and mother as the most appropriate roles for women.” Morgan, supra, at 42. And teaching became “a socially sanctioned and highly visible way for women to pursue education, support themselves (admittedly on meager wages), and delay or avoid marriage.” Id.
“American public education remains a profoundly gender-polarized profession,” Blount, Spinsters, supra, at 97, but some of the great battles about
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gender roles—both legal and cultural—have been fought in and about the classroom.
A. Women are allowed into teaching In 1800, 90 percent of the nation’s teachers were male, Dana Goldstein, The Teacher Wars 4 (2014), but by 2012, 76 percent were women, Michelle Kahn & Paul C. Gorski, The Gendered and Heterosexist Evolution of the Teacher Exemplar in the United States, 18 Int’l J. Multicultural Educ. 15, 17 (2016). Women were initially banned from teaching altogether and the bans were motivated by particular gender ideas of the day: “community leaders believed that women lacked the stature—physical and social—to win or impose the authority and discipline essential to an efficient school,” Michael J. Sedlak, A History of Teachers and Teaching in America, in Encyclopedia of Educational Research 1369 (M.C. Alkin, ed., 6th ed. 1992), and that women were to remain in the home, focusing on cooking, cleaning, and raising children, Kahn, supra, at 18; see also Graves, supra, at 130. Women first entered the teaching profession in the early- to mid-nineteenth century as free schools and educational opportunity expanded, increasing the number of schools and thus the demand for teachers. Hazel Davis & Agnes Samuelson, Women in Education, 6 J. Soc. Issues 25, 25 (1950). By 1850, teaching became considered women’s work. Graves, supra, at 129. Teaching was work for
9

“non-college educated, unmarried, low paid mother substitutes.” Goldstein, supra, at 40. The female majority in the teaching profession only accelerated during and after the Civil War. Graves, supra, at 129; Suzanne Howard, Nat’l Council of Admin. Women in Educ., Why Aren’t Women Administering Our Schools? 5 (1975). By 1920, 86 percent of all teachers were women, and of these, 91 percent were single, widowed, or divorced women. Blount, Fit, supra at 59.
Women’s allowance into the profession too was motivated by the gender norms of its day:
• Women were favored based on the stereotype that they were nurturers who could instill values in children, Graves, supra, at 125, 129; Sedlak, supra, at 1370;
• The schoolhouse was seen as an extension of the private sphere, Graves, supra, at 129, and teaching therefore “an extension of women’s domesticity,” Morgan, supra, at 39;
• Teaching was viewed as excellent preparation for marriage and motherhood, Blount, Spinsters, supra, at 88, although marriage itself was considered incompatible with teaching;
• A female teacher could be paid about a third of a male teacher’s salary, Kahn, supra, at 18; see also Sedlak, supra at 1370; and
• Men were expected to leave the classroom in order to focus on increasing
10

their, their family’s, and the nation’s wealth, Graves, supra, at 129; The teaching profession opened up to women in the 1800s, but even then only to a narrow class: single women. This rule, too, was driven by gender norms. Single teachers would not “suffer from dual allegiances to school employers and husbands”—as women, they had to “submit to male authority either in their personal or work lives,” so if they were unmarried, there would be no potential conflict of loyalties. Blount, Spinsters, supra, at 87. The preference for single women led to “marriage bans,” which became popular after World War I. See generally David Wilbur Peters, The Status of the Married Woman Teacher 85 (1934); see also Graves, supra, at 132. By 1934, a married woman could not be hired as a teacher in 88 percent of the school systems in the country. Peters, supra, at 85. In over 40 percent of school systems that year, a teacher would be fired if she became married while employed. Id. There were no laws regarding marriage discrimination in school employment; the majority of school boards had policies prescribing discrimination against married women and the only protections, if any, available for married teachers were provided by tenure laws, which were just becoming widespread throughout the states. Id. at 22–23, 34–36. Why the discrimination against marriage? Here too gender norms motivated the discrimination. At the time, NEA summarized the opposition’s arguments as:
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• Married teachers cannot give the necessary attention to their home and family if they are working;
• Married teachers do a worse job teaching than single teachers; and • Single women need a job, as they have no one to provide for them, so
those jobs should not go to married women. Id. at 51. Eventually gender norms shifted again and married teachers became preferred to single teachers, although the bans did not fall en masse until the 1960s. Graves, supra, at 132. That change was motivated by a growing suspicion of unmarried female teachers: by remaining single, teachers were transgressing gender norms. Blount, Spinsters, supra, at 89. Discrimination against single women rose, for many reasons, reasons bound up with gender norms and human sexuality:
• The idea of the “spinster” teacher became synonymous with homosexuality, Kahn, supra, at 19;
• It was realized that single women were not abstaining from sex—with either men or women—as previously assumed, id. at 65–67;
• Single women were accused of encouraging young girls to evade marriage, Blount, Fit, supra, at 2; and
• Claims persisted that an unmarried woman was more prone to nervous breakdowns and bitterness, Kahn, supra, at 19.
Although marriage bans lost support much earlier, the Great Depression meant
12

that dual-income families were disfavored. Blount, Spinsters, supra, at 91. Married women were viewed to be in competition with both men and single women for employment. Ilya A. Iussa, Pregnant Pause, 15 Scholar 745, 750 (2013). It was not until the end of World War II and its subsequent teacher shortage that there was “an economically compelling reason to permit married women to teach.” Blount, Spinsters, supra, at 91. Fewer single women wanted to be teachers—they made more money working in factories during the war, and secretarial and support staff positions opened up even after the men returned home. Blount, Fit, supra, at 76. As economic concerns fell away and concerns about promiscuity and homosexuality heightened, married women became preferred for teaching positions over single women. Id. at 78.
Discrimination against single women was not the only justification proffered for eliminating marriage bans: stereotypes of marriage and motherhood were invoked. It was said that “marriage and parenthood are likely to enrich a teacher’s understanding of childhood and family life and thus will help her to be a better teacher.” Blount, Spinsters, supra, at 90 (internal quotations omitted).
As marriage bans fell, society began to view unmarried teachers as deviant. Graves, supra, at 132. The rise of married teachers occurred contemporaneously with the policing of heteronormative behavior by school authorities. Id. By 1960, “marriage had come to represent evidence of one’s heterosexuality, and therefore
13

fitness for service to education.” Blount, Spinsters, supra, at 95. At least in part because of this discrimination, marriage rates of teachers—both male and female— were notably higher than the marriage rates of employees in the general workforce. Id.; see also Blount, Fit, supra, at 78.
B. Pregnancy-based sex discrimination targets teachers Post-World War II, even prior to the fall of the marriage bans, women who married while teaching often remained teachers. Iussa, supra, at 751. However, these married women “were frequently deemed unsuitable to teach while pregnant.” Id. An NEA survey in 1948 found that 57 percent of school districts mandated that teachers take maternity leave, “usually starting around the time that pregnancy becomes visible (from about the fourth to sixth month of pregnancy) and lasting well until after childbirth.” Id. Unwed pregnant teachers, in particular, faced discrimination very similar to what gay and lesbian teachers faced. “Like homosexuality, extra-marital sexual behavior is mutable or concealable until a woman becomes visibly pregnant. Becoming visibly pregnant, therefore, is analogous to the act of ‘coming out;’ pregnancy forces private ‘deviant’ behavior into the public sphere.” Rachael Knight, From Hester Prynne to Crystal Chambers: Unwed Mothers, Authentic Role Models, and Coerced Speech, 25 Berkeley J. Emp. & Lab. L. 481, 500 (2004). “Like the homosexual who has publicly self-identified, the pregnant
14

woman has come to personally embody her actions; she is no longer privately having sex, she has become ‘A Pregnant, Unwed Woman.’ Her private actions become her public identity.” Id.
Discrimination against pregnant teachers was justified based on the idea that students had to be shielded from this “public” declaration of gender norms and roles. See, e.g., Hollenbaugh v. Carnegie Free Library, 436 F. Supp. 1328, 1332 (W.D. Pa. 1977), aff'd, 578 F.2d 1374 (3d Cir. 1978) (upholding termination of unwed pregnant librarian). But see Andrews v. Drew Mun. Separate Sch. Dist., 507 F.2d 611 (5th Cir. 1975) (striking down, on Equal Protection and Due Process grounds, school rule that prevented unwed mothers from teaching based on the idea that they were gender role models that students would emulate).
C. Gay and lesbian teachers face pernicious sex discrimination Discrimination against gay and lesbian teachers has been, from the beginning, motivated by the same type of desire to enforce gender norms against teachers and to prevent teachers from exposing students to gender norms different from the prevailing gender views of the day that justified discrimination against women, single women, married women, and pregnant women. Female teachers, for example, who avoided marriage were purged because it was said that they must be lesbians; whereas men who remained classroom teachers must be gay. See Blount, Spinsters, supra, at 86, 91.
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After World War II, teaching became even more narrowly gendered normative. During the Cold War, teachers were frequently targets of anti-gay discrimination, Graves, supra, at 139; Kate Rousmaniere, Looking at the Man in the Principal’s Office, in American Education in Popular Media 204 (Sevan G. Terzian & Patrick A. Ryan, eds., 2015); Blount, Spinsters, supra, at 92, and the justifications for doing so were explicitly about promoting certain gender norms and prohibiting others.
Gay and lesbian teachers faced scurrilous lies and assertions about their impact on gender norms to justify their oppression. Gay teachers, it was said, had to be purged because:
• “‘Overexposure to feminine norms’ at home and school was turning boys into sissies,” Rousmaniere, Looking, supra, at 202 (citing Patricia Cayo Sexton, The Feminized Male (1969));
• Gay teachers would target children for abuse, Graves, supra, at 18–19, and homosexuality was akin to pedophilia, Anthony Niedwiecki, Save Our Children, 21 Duke J. Gender L. & Pol’y 125, 142–43 (2013);4
4 Contemporaneous media perpetuated this myth. A 1974 episode of a popular TV show, Marcus Welby, MD, featured a story of a gay teacher raping a student. Blount, Fit, supra, at 4. A popular magazine in the 1950s, Coronet, published an article titled “The New Moral Menace to Our Youth,” that told the story of schoolboys engaging in homosexual activity after being “taught” to do so by a teacher. Id. at 89–90.
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• “[E]ffeminate male teachers . . . ‘carry sex problems into the schools, and transmit abnormal attitudes to their pupils,’” Blount, Spinsters, supra, at 91 (citing Willard Waller, The Sociology of Teaching (1932)); and
• Gay teachers would infect children with, or recruit children to, homosexuality, Graves, supra, at 18–19; Rousmaniere, Looking, supra, at 204; Suzanne E. Eckes & Martha M. McCarthy, GLBT Teachers: The Evolving Legal Protections, 45 Am. Educ. Res. J. 530, 531 (2008).
The gender-norm enforcement that harmed gay and lesbian teachers also harmed straight teachers, including straight male teachers. It was thought that gays could be accurately identified by their gender non-conformance; as such, teachers had to “accentuate the gender-appropriateness of their clothing, appearance, and actions.” Blount, Fit, supra, at 81. Unmarried women, particularly those who had short hair or did not dress in a feminine manner, were at risk for being labeled lesbian and fired. Id. at 6.
For much of our history, coaching had been essentially closed to women, because coaching was viewed as a masculine enterprise, and there was a stereotype that female coaches must be lesbians. See Rousmaniere, Looking, supra, at 199; Anne Gregory, Rethinking Homophobia in Sports: Legal Protections for Gay and Lesbian Athletes and Coaches, 1 DePaul J. Sports L. & Contemp. Probs. 264, 272– 73 (2004) (“Accusations that playing sports ‘masculinizes’ women, or that female
17

coaches or athletic personnel are lesbians, serve[] to discredit women regardless of
actual sexual orientation so that men can ‘retain their higher status and control of
resources.’”) (internal citations omitted). Title IX of the Education Amendments of
1972 expanded opportunity for female athletes, but it did less for female coaches, largely because of widespread homophobia.5
Male teachers, including straight male teachers, also found themselves in a
tough position: there was a stereotype that men who were classroom teachers were
effeminate, and effeminate men were stereotyped as gay. Blount, Spinsters, supra,
86, 91; Jackie M. Blount, W.W.II and the Great Gender Realignment of School
Administration 10–11 (1999). Fears of young boys growing up to be weak and of
gay men corrupting students brought about a campaign to recruit heterosexual men
into the schools; these men were promised administrative positions. Blount,
Spinsters, supra, at 86, 92. Contemporaneous job advertisements for school
administrators called for heterosexual, married men without effeminate qualities.
Kate Rousmaniere, The Principal’s Office 99 (2013). The position of principal was
5 See Kate Fagan & Luke Cyphers, The Glass Wall, ESPN.com, http://www.espn.com/espn/eticket/story?page=theGlassWall (last accessed June 26, 2017) (“Homophobia has haunted women’s sports throughout the Title IX era, forcing coaches to stay closeted for fear of losing their jobs, or at least recruits. In some quarters, coaches have been known to signal quietly to prospects or their parents that a competing program is run by a lesbian, in an effort to turn the recruit away.”); cf. Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998) (finding unconstitutional the termination of a female volleyball coach due to her sexual orientation).
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masculinized by physically separating administration from female teachers, requiring specialized credentialing, consolidating small schools that may have had women principals with larger schools, and tapping athletic coaches for principle positions. Rousmaniere, Looking, supra, at 196–99. Even today, men who work in female-identified positions, such as elementary school teacher, are often accused of being gay. See, e.g., Rebecca Priegert Coulter & Margaret McNay, Exploring Men’s Experiences as Elementary School Teachers, 18 Can. J. Educ. 398, 403–04 (1993); Susan Donaldson James, Why Men Don’t Teach Elementary School, ABC News (Mar. 25, 2013), http://abcnews.go.com/Health/men-teach-elementaryschool/story?id=18784172.
The fear of gay and lesbian teachers “drove conventional gender-identified roles in schoolwork to polar extremes,” Blount, W.W.II., supra, at 12, and its impact still reverberates today.
II. Gay and lesbian teachers, in particular, have suffered great harm as a result of sex discrimination in school employment.
Sexual orientation discrimination did not just shape the gendered expectations of the teaching profession; it also caused widespread harm to teachers.
There is a long history of gay and lesbian educators remaining closeted in order to keep their jobs. See generally Blount, Fit, supra. During the Cold War, teachers were frequently fired for mere rumors of homosexuality. Blount, Spinsters, supra, at 92–95; Harbeck, supra, at 187. As one historian put it, “Quite probably, the
19

occupational group most harmed [by anti-gay campaigns during the Cold War] w[ere] lesbian and gay educators.” Harbeck, supra, at 187.
Post-war America witnessed numerous campaigns of discrimination directed at gay and lesbian educators. These campaigns were justified for the explicit reason that gays and lesbians deviated from accepted gender norms and may influence how students view their own gender expression. For example, between 1957 and 1963, the Florida Legislative Investigative Committee focused with great public fanfare on investigating and firing gay and lesbian teachers. Graves, supra, at 10. The State Superintendent proclaimed that “[t]he presence of even one homosexual teacher in our schools is not to be tolerated.” Id. at 98. The Committee claimed that “[p]racticing homosexuals . . . recruit[] young people as sex partners . . . [and a] homosexual teacher . . . can and does do tremendous damage to quite a large group of children.” Id. at 106–07. More than 100 teachers were fired during those six years. Amanda Machado, The Plight of Being a Gay Teacher, The Atlantic (Dec. 16, 2014), https://www.theatlantic.com/education/archive/2014/12/the-plight-ofbeing-a-lgbt-teacher/383619/.
In late 1970s Miami, an anti-discrimination ordinance that would have protected gays and lesbians in housing and some employment was defeated by a so-called Save Our Children movement. Blount, Spinsters, supra, at 96. Save Our Children’s opposition to the anti-discrimination ordinance “included pictures of
20

newspaper clippings detailing stories of teachers and gay men arrested for having sex with children,” Niedwiecki, supra, at 146, fanning parental concerns that crossdressing, flamboyant gay men were entering the teaching profession because they were attracted to young boys, Harbeck, supra, at 44. Parents were told that antidiscrimination laws would force teachers to teach children that being gay was an alternative lifestyle they were welcome to explore. Id. at 56.
In late 1970s California, an initiative to permit schools to fire gay and lesbian teachers gained national attention, but was defeated. Blount, Spinsters, supra, at 96. The sponsor of this initiative, Senator Briggs, argued that firing gay and lesbian teachers was necessary to prevent alterations in generally accepted gender norms.
A teacher who is a known homosexual will automatically represent that way of life to young, impressionable students at a time when they are struggling with their own critical choice of sexual orientation. When children are constantly exposed to such homosexual role models, they may well be inclined to experiment with a life-style that could lead to disaster for themselves and ultimately for society as a whole. Niedwiecki, supra, at 151–52 (citing Dudley Clendinen & Adam Nagourney, Out for Good 381 (1999), quoting a contemporaneous Los Angeles Times column). Oklahoma, however, successfully passed a virtually identical bill in the late 1970s, which was upheld in-part by the Tenth Circuit: according to the Tenth Circuit then, public LGBTQ advocacy was an unconstitutional ground for teacher dismissal, but specific gay acts were acceptable grounds for dismissal. The Nat’l
21

Gay Task Force v. Bd. of Educ. of Okla. City, 729 F.2d 1270 (10th Cir. 1984), aff’d by an equally divided Court, 470 U.S. 903 (1985).
In the early 1990s, Oregon attempted to pass Ballot Measure 9, which would require public schools to “assist in setting a standard for Oregon's youth that recognizes homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided.” Timothy Egan, Oregon Measure Asks State to Repress Homosexuality, N.Y. Times (Aug. 16, 1992), https://goo.gl/fKFhZ2. Forty-four percent voted for it. Or. Blue Book, Initiative, Referendum and Recall: 1988-1995 (2017), http://bluebook.state.or.us/state/elections/elections21.htm. In 1992, Colorado passed Amendment 2, which repealed anti-discrimination protections for gays and lesbians in Denver, Boulder, and Aspen and prohibited local governments, including school districts, from ever again enacting anti-discrimination provisions that would protect gays and lesbians—the amendment was eventually struck down by the Supreme Court. See Romer v. Evans, 517 U.S. 620 (1996).
Even today, gay and lesbian teachers are fired from schools and face workplace harassment.6 One survey notes that in 2008, 86 percent of gay and lesbian teachers
6 See, e.g., Amanda Terkel, Gay Teacher Fired After Posting Marriage Announcement on Facebook, HuffPost (Jan. 14, 2015), http://www.huffingtonpost.com/2015/01/14/lonnie-billiard_n_6472566.html; Kate Abbey-Lambertz, Supporters Rally for Lesbian Teacher Who Was Fired After Getting Pregnant, HuffPost (Sept. 8, 2014),
22

heard homophobic comments in schools; 35 percent feared they would lose their
job if they were outed to an administrator; and 53 percent feared they would lose
their job if they were outed to students. Nancy J. Smith et al., A National Study of
LGBT Educators’ Perceptions of Their Workplace Climate 14–15 (2008).
Even recent Supreme Court justices have welcomed the idea that discrimination
against gay and lesbian educators is acceptable precisely because gays and lesbians
deviate from certain gender norms and because of the fear that gay and lesbian
teachers would influence negatively the gender norms of their students. During
oral arguments in Lawrence v. Texas, the case that ultimately struck down criminal
sodomy laws, “Chief Justice Rehnquist asked an attorney arguing on behalf of
Lawrence if it would be unconstitutional to deny the right of gay people to teach
kindergarten. Justice Scalia interjected, ‘Well, the reason would be they don’t want
them to lead children down the path of homosexuality.’” Eckes, GLBT Teachers,
supra, at 531. Justice Scalia’s dissent noted that “[m]any Americans do not want
http://www.huffingtonpost.com/2014/09/08/barb-webb-gay-firedmarian_n_5784450.html; Beau Yarbrough, Lesbian Teacher Says She Was Fired for Helping LGBT Students, HuffPost (Nov. 20, 2013), http://www.huffingtonpost.com/2013/11/20/lesbian-teacher-firedlgbt_n_4309312.html; Meredith Bennett-Smith, Carla Hale, Gay Teacher, Fired from Catholic High School After Being ‘Outed’ By Mother’s Obituary, HuffPost (Apr. 18, 2013), http://www.huffingtonpost.com/2013/04/18/carla-hale-gay-firedteacher-catholic-high-school_n_3103853.html; Catherine Gewertz, Fired Beverly Hills Superintendent Claims Anti-Gay Bias, Educ. Week (Mar. 8, 2000), http://www.edweek.org/ew/articles/2000/03/08/26gay.h19.html; Kahn, supra, at 16 (in 1997, parents in Utah lobbied to have the teaching license of a lesbian teacher revoked because they claimed she could not be a positive role model).
23

persons who openly engage in homosexual conduct . . . as teachers in their children's schools[.]” Lawrence v. Texas, 539 U.S. 558, 602 (2003).
From the gay scares of the 1950s through Justice Scalia’s utterances, it has been clear that discrimination against gay and lesbian teachers has always been premised on their deviation from accepted gender norms.
III. Gay and lesbian students would benefit from a ruling in Zarda’s favor and would be harmed by a contrary ruling.
Ruling that Title VII prohibits sexual orientation discrimination will not just protect gay and lesbian teachers; it will protect gay and lesbian students as well. Title VII and Title IX of the Education Amendments of 1972’s prohibitions on sex discrimination are construed similarly. See, e.g., Cannon v. Univ. of Chi., 441 U.S. 677, 694–98 (1979). If the panel’s ruling is upheld, gay and lesbian students could be deprived of Title IX protections, contravening the view of many other courts.7
Yet Title IX’s protections are more important than ever for students: the Trump Administration recently rescinded its Title IX transgender guidance and reversed LGBT-targeted enforcement activities, suggesting at the very least, that in its view, schools are free to discriminate against students for just being gay, lesbian, or 7 See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-3522, 2017 WL 2331751, at *8–11, __ F. 3d __ (7th Cir. May 30, 2017); Bd. of Educ. of Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 865–71 (S.D. Ohio 2016), appeal docketed, No. 16-4117 (6th Cir. Sept. 28, 2016); Carcaño v. McCrory, 203 F. Supp. 3d 615, 632–39 (M.D.N.C. 2016); Videckis, 150 F. Supp. 3d at 1159–60.
24

transgender. See Civil Rights Div., U.S. Dep’t of Justice & Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf; cf. Emma Brown, Education Dept. Closes Transgender Student Cases As It Pushes to Scale Back Civil Rights Investigations, Wash. Post (June 17, 2017), https://goo.gl/BJ4Tf7.
This is unacceptable. Gay and lesbian students need the protection of federal law. Nearly 60 percent of gay and lesbian students feel unsafe at school because of their sexual orientation; 85 percent report they have been verbally harassed; 60 percent report they have been sexually harassed; 27 percent report they have been physically harassed; and 13 percent report they have been physically assaulted. Joseph G. Kosciw et al., GLSEN, The 2015 National School Climate Survey 22– 24 (2016). Harassed and bullied students have lower grades, higher absenteeism, higher rates of depression, and are less likely to attend college. Id. at 41.
Discrimination against gay and lesbian students not only harms them but it harms all students by degrading the overall school climate. School climate—that is, the “product of the interpersonal relationships among students, families, teachers, support staff and administrators” that sets the “norms, values, and expectations that support people feeling socially, emotionally, and physically safe” in school—is a key predictor of student engagement, student mental and physical health, and
25

academic achievement, and is positively correlated with decreased absenteeism, dropout rates, and suspensions.8
Discrimination against gay and lesbian teachers also harms gay and lesbian
students. The role teachers play in supporting gay, lesbian, and transgender
students cannot be overstated. See, e.g., Taica Hsu, How I Support LGBTQ+
Students at My School, Am. Educator, Winter 2016–2017, at 20–22,
https://goo.gl/VW7gGM. When students have the support of both their teachers
and peers, they have higher academic, emotional, and social success. Paul D.
Flaspohler et al., Stand By Me: The Effects of Peer and Teacher Support in
Mitigating The Impact of Bullying on Quality of Life, 6 Psych. in Schs. 636, 639,
645–46 (2009). And in schools that have Gay-Straight Alliances, which provide a
safe space for LGBTQ students and their allies, LGBTQ students are subject to
less harassment and feel more safe in school. Kosciw, supra, at 62–63.
Gay and lesbian teachers in particular are able to provide key emotional support
8 See Nat’l Sch. Climate Ctr., School Climate Research Summary 2–3 (August 2012), https://www.schoolclimate.org/climate/documents/policy/sc-brief-v3.pdf; Nat’l Educ. Ass’n, Research Brief: Importance of School Climate 1 (2013), https://www.nea.org/assets/docs/15584_Bully_Free_Research_Brief-4pg.pdf; Nat’l Sch. Climate Ctr., The School Climate Challenge 5 (2007), https://www.schoolclimate.org/climate/documents/policy/school-climatechallenge-web.pdf; David Osher et al., Improving Academic Achievement Through Improving School Climate and Student Connectedness (Apr. 14, 2009), https://goo.gl/4nCGPJ; Adam Voight, Gregory Austin & Thomas Hanson, A Climate for Academic Success (2013), http://files.eric.ed.gov/fulltext/ED559741.pdf.
26

to gay students. See generally Katherine van Wormer & Robin McKinney, What Schools Can Do to Help Gay/Lesbian/Bisexual Youth: A Harm Reduction Approach, 38 Adolescence 409 (2003); Corrine Muñoz-Plaza, Sandra Crouse Quinn & Kathleen A. Rounds, Lesbian, Gay, Bisexual and Transgender Students: Perceived Social Support in the High School Environment, 85 High Sch. J. 52 (2002). But all too often, gay and lesbian teachers do not feel safe intervening in cases of sexual harassment or discrimination. See generally Elizabeth J. Meyer, Gendered Harassment in Secondary Schools, 20 J. Gender & Educ. 555 (2008); see also Machado, supra. Gay and lesbian teachers still fear that they will lose their jobs if they are outed. Smith, supra, at 14–15; Human Rights Watch, “Like Walking Through a Hailstorm” 3, 10 (Dec. 7, 2016), https://www.hrw.org/sites/default/files/report_pdf/uslgbt1216web_2.pdf. And when gay and lesbian students see that their gay and lesbian teachers are closeted or are terminated or harassed for being gay, the message of stigmatization that that sends to gay and lesbian students is unmistakable. Kahn, supra, at 23–24; see also Todd A. DeMitchell, Suzanne Eckes & Richard Fossey, Sexual Orientation and the Public School Teacher, 19 B.U. Pub. Int. L.J. 65, 104–05 (2009).
CONCLUSION For the foregoing reasons, Amicus urges this Court to overrule Simonton and its progeny and conclude that sexual orientation discrimination is a form of sex
27

discrimination under Title VII. June 26, 2017

Respectfully submitted,
/s/ Eric A. Harrington
ALICE O’BRIEN ERIC A. HARRINGTON MARY E. DEWEESE* NATIONAL EDUCATION ASSOCIATION 1201 16th Street, N.W. Washington, DC 20036-3290 (202) 822-7018 eharrington@nea.org
*Admission pending

28

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rules 29.1(c) and 32(a)(4)(A) because it contains 6,289 from the Introduction and Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word with Times New Roman 14-point font.
/s/ Eric A. Harrington ERIC A. HARRINGTON

CERTIFICATE OF SERVICE I hereby certify that on June 26, 2017, the foregoing document was served on all parties or their counsel of record through the CM/ECF system.
/s/ Eric A. Harrington ERIC A. HARRINGTON

 
 No. 15-3775-CV

IN THE
United States Court of Appeals For the Second Circuit
_________
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.
_________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
_________

BRIEF OFAMICI CURIAE MATTHEW CHRISTIANSEN & PROFESSOR ANTHONY MICHAEL KREIS IN SUPPORT OF PLAINTIFFSAPPELLANTS
_________

SUSAN CHANA LASK, ESQ. LAW OFFICES OF SUSAN CHANA LASK 244 FIFTH AVENUE, SUITE 2369 NEW YORK, NY 10001 917/300-1958

Counsel for Amici Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES....…………..……………………………….ii STATEMENT OF INTEREST OF AMICI CURIAE…............................ 1 SUMMARY OF ARGUMENT………. ......... ……………....…………... 2 ARGUMENT.................................................. …..……………..…………3
I. SEXUAL ORIENTATION DISCRIMINATION IS SEX DISCRIMINATION AND IS ACTIONABLE UNDER TITLE VII’S EXISTING FRAMEWORK……………...………………..3
II. SUPREME COURT PRECEDENT REJECTS DIVORCING STATUS AND CONDUCT… .......... ………………….……… 11
III. SIMONTON MUST BE OVERTURNED TO RESOLVE THE INCONSISTENT APPLICATION OF TITLE VII GIVEN THIS CIRCUIT’S PRECEDENT IN HOLCOMB …………………. 13
CONCLUSION…………………….......…………………….......…….. 16
CERTIFICATE OF COMPLIANCE………………………………. 17

TABLE OF AUTHORITIES
CASES
Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006)……………………………... 6 Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v.
Norris, 463 U.S. 1073, (1983)…………………………………………….. 13 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)………………………………………... 7 Boutillier v. Hartford Pub. Sch., 2016 WL 6818348 (D. Conn. Nov. 17, 2016)…. 3 Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. Feb.
27, 1998).........................................................................................................6 Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)……………… 15 Christian Legal Society v. Martinez, 561 U.S. 661 (2010)……………………….11 Christiansen v. Omicom, WL 1130183 (2d Cir. Mar. 27, 2017)……………passim Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)………………………8 EEOC v. Scott Med. Health Ctr., P.C., 2016 WL 6569233 (W.D. Pa. Nov. 4,
2016)……………………………………………………………………….. 8 Evans v. Georgia Regional Hospital, 2017 WL 943925 (11th Cir. Mar. 10,
2017)....... ……………………………………………………………..passim Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)………………. 5
ii

Hall v. BSNF Railway Company, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014)………………………………………………. 5
Hamm v. Weyauwega Milk Prod., Inc., 332 F.3d 1058 (7th Cir. 2003)….……….. 9 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)…………… …………………….5 Hively v. Ivy Tech Community College, 2017 WL 1230393 (7th Cir. Apr. 4,
2017)…………………………………………………………………. passim Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)……………….……13, 14 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)………… …………….. 6 L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978)……..………… 4, 8 Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)……………… ……………………... 5 Lawrence v. Texas, 539 U.S. 558 (2003)………… ………………………….12, 15 Lawson v. Kelly, 2014 WL 5810215 (W.D. Mo. Nov. 7, 2014)……………………5 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)……………….………….13 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)…………… ………………….12, 15 Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986)……14 Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010)……………………6 Price Waterhouse v. Hopkins, 490 U.S. at 243 (1989)……… ………..…… passim Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)………….................…...…passim United States v. Windsor 133 S. Ct. 2675 (2013)…… ………………………12, 15 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015)……………8
iii

STATUTES 42 U.S.C. § 2000e- 2(a)(1). ………………………………………………………. 2 OTHER AUTHORITIES Anthony Michael Kreis, Against Title VII Potemkin Villages: Title VII and Sexual
Orientation Discrimination, 96 TEX. L. REV. SEE ALSO 1 (2017)…......…… 9 George Rutherglen & Daniel R. Ortiz, Affirmative Action Under the Constitution
and Title VII: From Confusion to Convergence, 35 UCLA L. REV. 467, 470 (1988)………………………………………………………………………. 7
iv

STATEMENT OF INTEREST OF AMICI CURIAE
Amici Curiae Matthew Christiansen and Professor Anthony Michael Kreis have a vital interest in this case. Amicus Matthew Christiansen is the plaintiff-appellant in Christiansen v. Omnicom, 852 F.3d 195, 2017 U.S. App. LEXIS 5278 (2d Cir. 2017). A concurring opinion in Christiansen strongly supported en banc review of whether sexual orientation is protected under Title VII, it was relied upon in the Seventh Circuit’s decision in Hively v. Ivy Tech, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) holding Title VII prohibits sexual orientation discrimination, and it lends invaluable support to the issue at bar by explaining the legal fiction distinguishing sexual orientation discrimination and sex stereotyping created by this Circuit in Simonton. Finally, Christiansen’s petition for en banc review was put on hold by this Court pending the disposition of Zarda and will directly impact Christiansen.
Amicus Anthony Michael Kreis is law professor at Chicago-Kent College of Law where he teaches employment discrimination and publishes scholarship on workplace discrimination, sexual orientation and the law, and legislation.1 Through his research and teaching, amicus works to promote equal employment
1 Amicus’ institutional affiliation is listed for identification purposes only. No party’s counsel authored this brief in whole or in part.
1

opportunities for the gay, lesbian, and bisexual community. For the above reasons, amici have an interest in the proper interpretation and application of Title VII.
SUMMARY OF ARGUMENT The exceptionally important question before this Court is whether employers covered under Title VII can discriminate against gay, lesbian, and bisexual persons with relative impunity despite Title VII’s prohibition against sex discrimination, 42 U.S.C. § 2000e- 2(a)(1). While Title VII was initially viewed as a tool to combat discrimination against women in the workplace, the Supreme Court has made clear in decades’ worth of precedent that the sweep of Title VII’s sex discrimination prohibition is significantly broader. Courts, however, struggle with sexual orientation discrimination claims offering unworkable and cramped interpretations of Title VII that provide remedies for sexual orientation discrimination only when a male plaintiff is effeminate or a female plaintiff is masculine. This incoherent line drawing essentially allows employers to invoke a “love the sin, hate the sinner” defense to escape liability for adverse employment actions harming lesbians, gays, and bisexuals. Any interpretation of Title VII’s sex discrimination ban that attempts to parse
2

outward appearances and behaviors from a person’s sexual orientation is inconsistent with Supreme Court precedent, Title VII's protections against racial and religious discrimination, and this Court’s holding in Holcomb v. Iona College. This Court should overturn Circuit precedent and hold in line with the Circuit Court of Appeals for the Seventh Circuit, multiple federal district courts and the Equal Employment Opportunity Commission that there is no principled reason to distinguish sexual orientation discrimination and sex stereotyping because both are forms of impermissible discrimination “because of sex” under Title VII.
ARGUMENT I. SEXUAL ORIENTATION DISCRIMINATION IS SEX
DISCRIMINATION AND IS ACTIONABLE UNDER TITLE VII’S EXISTING FRAMEWORK Chief Judge Katzmann’s concurrence in Christiansen reflects society’s evolving understanding that sexual orientation discrimination is sex discrimination because “homosexuality is the ultimate gender non–conformity, the prototypical sex stereotyping animus.” Boutillier v. Hartford Pub. Sch., No. 3:13–CV–01303– WWE, 2016 WL 6818348 (D. Conn. Nov. 17, 2016). In light of that concurrence and its impact in Hively v. Ivy Tech Community College, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) holding that Title VII bans sexual orientation discrimination,
3

this Court has an important opportunity to overturn its decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which held Title VII does not proscribe harassment or discrimination because of sexual orientation. Simonton’s antiquated and cramped approach distinguishing sex stereotyping unrelated to sexual orientation (prohibited by Title VII), and sex stereotyping arising from an employee’s lesbian, gay, or bisexual status (as non-actionable) is unworkable and inconsistent with evolving gay, lesbian, and bisexual (LGB) rights jurisprudence.
The Seventh Circuit Court of Appeals in Hively v. Ivy Tech Community College recognized that Title VII’s ban on sex discrimination includes sexual orientation discrimination. Sexual orientation discrimination fits cleanly within the Supreme Court's “simple” “but for” test for what constitutes sex discrimination under Title VII— “whether the evidence shows ‘treatment of a person in a manner which but for that person's sex would be different” L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (citation omitted). The “but for” causation is easiest understood when an adverse employment action arises from an employer’s disapproval or unequal treatment of an employee’s same-sex relationship that would not occur if that employee was in an opposite-sex relationship.
4

Such was the case in Hall v. BSNF Railway Company, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) where an employer denied healthcare benefits to married same-sex couples otherwise provided to married opposite-sex couples. The company moved to dismiss the Title VII sex discrimination claim arguing that the thrust of the plaintiff’s case was really about sexual orientation discrimination. The court denied the motion to dismiss noting that “Plaintiff alleges disparate treatment based on his sex, not his sexual orientation, specifically that he (as a male who married a male) was treated differently in comparison to his female coworkers who also married males” Id. at *3.
The Hall court’s reading of Title VII importantly mirrors the analysis used by a handful of courts considering constitutional challenges to anti-marriage equality laws. The first state courts and the first federal courts to deal blows to state same-sex marriage prohibitions did so under the rationale that anti-gay marriage laws constituted sex discrimination.2 See Lawson v. Kelly, 2014 WL 5810215, at
2 Notable concurring and dissenting opinions in same-sex marriage litigation also acknowledged marriage discrimination against same-sex couples was a form of sexdiscrimination. See Latta v. Otter, 771 F.3d 456, 480-96 (9th Cir. 2014) (Berzon, J., concurring); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 971-73 (Mass. 2003) (Greaney, J., concurring); Hernandez v. Robles, 855 N.E.2d 1, 29-30 (N.Y. 2006) (Kaye, C.J., dissenting); Baker v. State, 744 A.2d 864, 905-07 (Vt. 1999) (Johnson, J., concur-
5

*8 (W.D. Mo. Nov. 7, 2014) (“The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D.Cal.2010) (“Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry's choice of marital partner because of her sex.”), aff'd sub nom., Perry v. Brown, 671 F.3d 1052 (9th Cir.2012), vacated and remanded sub nom., Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652 (2013); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206–07 (D. Utah 2013), aff'd, 755 F.3d 1193 (10th Cir. 2014) (finding Utah’s same-sex marriage ban subject to “the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex. . . . and unable to satisfy the more rigorous standard of demonstrating an “exceedingly persuasive” justification for its prohibition against same-sex marriage.”); Brause v. Bureau of Vital Statistics, 1998 WL 88743, at *6 (Alaska Super. Ct. Feb. 27, 1998) (noting that “the prohibition of same-sex marriage does implicate the Constitution's prohibition of classifications based on sex or gender”);
ring in part and dissenting in part); Andersen v. King Cnty., 138 P.3d 963, 1037-39 (Wash. 2006) (en banc) (Bridge, J., concurring in dissent).
6

Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993) (plurality) (proffering that a ban on same-sex marriage “on its face, discriminates based on sex”). Same-sex marriage rulings are further significant in light of Title VII’s “main purpose” which is “to extend the constitutional prohibition against discrimination from public to private action.” George Rutherglen & Daniel R. Ortiz, Affirmative Action Under the Constitution and Title VII: From Confusion to Convergence, 35 UCLA L. REV. 467, 470 (1988). See also Hively, 2017 WL 1230393, at *8 (7th Cir. Apr. 4, 2017) (noting that recognizing sexual orientation claims’ viability under Title VII “must be understood against the backdrop of the Supreme Court's decisions, not only in the field of employment discrimination, but also in the [constitutional law] area of broader discrimination on the basis of sexual orientation.”).
Trickier questions arise, however, in the context of an employer who harbors anti-LGB animus and takes hostile action against a person because of their sexual orientation without any direct connection to a same-sex relationship. What if a bisexual female worker in an opposite-sex relationship is fired because of her sexual orientation? What if a single, hyper-masculine, gay male employee is denied a promotion because of his sexual orientation? Title VII safeguards these persons from discrimination because it protects men and women from “the entire
7

spectrum of disparate treatment . . . resulting from sex stereotypes.” Price Water-
house, 490 U.S. at 251. Thus, employers cannot engage in “practices that classify
employees in terms of . . . sex [and] . . . assumptions about groups rather than
thoughtful scrutiny of individuals.” L.A. Dept. of Water & Power, 435 U.S. at 709.
This Court’s rulings in Simonton and Dawson v. Bumble & Bumble, 398 F.3d 211
(2d Cir. 2005) failed to capture the relationship between sex stereotypes and sexual
orientation discrimination.
Chief Judge Katzmann’s concurrence in Christiansen, supra. at *7 provides
the correct analysis, which this Court should adopt:
[To wall off a person’s sexual orientation from their demeanor and conduct is] an exceptionally difficult task in light of the degree to which sexual orientation is commingled in the minds of many with particular traits associated with gender. More fundamentally, carving out gender stereotypes related to sexual orientation ignores the fact that negative views of sexual orientation are often, if not always, rooted in the idea that men should be exclusively attracted to women and women should be exclusively attracted to men—as clear a gender stereotype as any.3
3 Other courts have echoed this idea. See Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698, 705 (7th Cir. 2016), as amended (Aug. 3, 2016), reh'g en banc granted, opinion vacated, No. 15-1720, 2016 WL 6768628 (7th Cir. Oct. 11, 2016) (explaining that “almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender nonconformity.”); EEOC v. Scott Med. Health Ctr., P.C., No. CV 16-225, 2016 WL 6569233, at *6 (W.D. Pa. Nov. 4, 2016) (“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”). See also Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (criticizing the workability of courts trying to distinguish sexual orientation discrimination claims and sex stereotyping) (“Simply put,
8

Simply put, “the question of whether sexual orientation discrimination claims are colorable under Price Waterhouse must turn on whether the root of the animus harbored against sexual minorities stems from sex-stereotypes— not whether all sexual minorities uniformly manifest a set of gender non-conforming characteristics.” Anthony Michael Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination, 96 TEX. L. REV. SEE ALSO 1, 6 (2017).
Framing the question in this fashion resolves the “extravagant legal fiction” where “the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.” Hamm v. Weyauwega Milk Prod., Inc., 332 F.3d 1058, 1067 (7th Cir. 2003) (Posner, J., concurring). Despite the state of the law today, Simonton remains an unworkable legal fiction that parses individuals’ sexual orientation from LGB persons’ relationships and outward traits, which is a hollow distinction.
Precedents like Simonton not only create absurd results but also improperly emphasize the inconsistent manifestation of non-conforming traits. A recent con-
the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”) (emphasis added).
9

curring opinion from Judge William Pryor in Evans v. Georgia Regional Hospital, 2017 WL 943925 (11th Cir. Mar. 10, 2017), exposes the untenable theoretical framework that underpins decisions like Simonton. The Pryor concurrence in Evans proffered that since “[t]he doctrine of gender nonconformity is, and always has been, behavior based,” sexual orientation discrimination claims do not necessarily qualify as nonconformity because LGB persons do not inherently violate gender norms. Evans at *9. This idea is, of course, consistent with the premise of Simonton that while sexual orientation discrimination and discrimination arising from a person’s gender non-conformity may often overlap, they are distinct. Judge Pryor writes, “Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation.” Id. at *8.
Part and parcel to the non-conformity theory according to Judge Pryor is that “[s]ome gay individuals adopt what various commentators have referred to as the gay “social identity” but experience a variety of sexual desires.” Id. Supporting this proposition is that “like some heterosexuals, some gay individuals may choose
10

not to marry or date at all or may choose a celibate lifestyle. And other gay individuals choose to enter mixed-orientation marriages.” Evans at *8.
The Evans concurrence underscores one of the flaws in Simonton’s attempt at line drawing. Indeed, this status-conduct dichotomy fails to comport with the lived experiences of gay, lesbian, and bisexual persons. The tortured logic courts have generally used to tip toe around the question before this Court relies on fictionalized theories of LGB persons that are contrary to reality.
II. SUPREME COURT PRECEDENT REJECTS DIVORCING STATUS AND CONDUCT Supreme Court precedent has never made a distinction between sexual ori-
entation as a status and the conduct of engaging in same-sex relationships. The Court expressly disapproved of divorcing status and conduct in Christian Legal Society v. Martinez, 561 U.S. 661, 689 (2010). In Martinez, the Christian Legal Society chapter at Hastings Law School challenged the law school’s nondiscrimination policy that required any student group receiving student funding must be open to all students. The CLS chapter’s bylaws included a provision that disallowed any individuals that engage in “unrepentant homosexual conduct” from
11

becoming members. Id. at 672. CLS argued that because persons with same-sex attractions could be members provided they disavowed same-sex relations, the bylaws did not discriminate against gays, lesbians, and bisexuals.
The Court rejected CLS’ attempt to disaggregate status and conduct. Writing for the majority, Justice Ginsburg emphasized that the Court’s decisions on LGB discrimination “have declined to distinguish between status and conduct.” Id. at 689. When the Supreme Court invalidated anti-sodomy laws, the Court was clear that equal protection jurisprudence understood sexual orientation and same-sex sexual conduct as intertwined. Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”). Equally instructive here are the subsequent decisions from federal courts in same-sex marriage litigation. The Supreme Court’s rulings striking down federal non-recognition of same-sex marriages in United States v. Windsor 133 S. Ct. 2675, 2693 (2013), and ruling against state same-sex marriage bans in Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) reinforced the non-severability of status and conduct. Thus, any interpretation of Title VII that allows for the parsing of
12

status from conduct cannot be reconciled with LGB rights jurisprudence more broadly.
III. SIMONTON MUST BE OVERTURNED TO RESOLVE THE INCONSISTENT APPLICATION OF TITLE VII GIVEN THIS CIRCUIT’S PRECEDENT IN HOLCOMB
Not only does Simonton contravene Supreme Court precedent, but it also creates inconsistencies in Title VII’s application. Unlike the Equal Protection Clause’s tired scrutiny approach to discrimination, “under Title VII a distinction based on sex stands on the same footing as a distinction based on race unless it falls within one of a few narrow exceptions.” Arizona Governing Comm. for Tax Deferred Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1083–84 (1983). See also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (“Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be” prohibited like racial harassment); Hively v. Ivy Tech, 2017 WL 1230393, at *7 (7th Cir. Apr. 4, 2017) (“The text of the statute draws no distinction, for this purpose, among the different varieties of discrimination it addresses . . . to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimi-
13

nation on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.”). Because Title VII “on its face treats each of the enumerated categories exactly the same,” any doctrinal inconsistencies between protected classes raise serious concerns. Price Waterhouse, 490 U.S. at 243 n.9.
Courts have held consistently that Title VII’s protections cover employees adversely treated because of their relationship with a person or persons of a race or national origin different from their own. This Circuit recognizes that “an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). As the Eleventh Circuit recognized, it would “be folly” to read Title VII as not permitting a claim for “discrimination based on an interracial marriage because, had the plaintiff been a member of the spouse's race, the plaintiff would still not have been hired.” Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 889 (11th Cir. 1986). Failure to recognize sex associational claims undermines the equal footing which Title VII places race and sex discrimination.
More than creating a fork in Title VII doctrine for sex and race/national origin claims, the approach in Simonton and the Evans concurrence conflicts with
14

basic religious anti-discrimination principles. Consider religious articles of clothing, like yarmulkes. If an employer refused to hire applicants that wear yarmulkes, would that constitute discrimination against a class of persons or the targeting of applicants’ behavior? If the status of being an observant Jew were severable from the conduct of yarmulke wearing, the employer would be free to engage in religious discrimination with impunity. This logic fails to hold water. As the Supreme Court has noted, “A tax on wearing yarmulkes is a tax on Jews.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270 (1993).
As the Seventh Circuit held and Judge Katzmann in Christiansen wisely recognized, in the wake of Lawrence, Windsor, and Obergefell, persons discriminated against because of their same-sex relationships should have viable association-based Title VII actions. See Christiansen at *6 (Katzmann, J., concurring) (“…it makes little sense to carve out same–sex relationships as an association to which [Title VII associational] protections do not apply, particularly where, in the constitutional context, the Supreme Court has held that same–sex couples cannot be” denied marriage rights). Leaving Simonton in place improperly creates a disparity in how Title VII sex discrimination doctrine operates with how Title VII
15

treats other protected persons— and with the sole impact of isolating gay, lesbian, and bisexual persons from workplace protections. CONCLUSION

This Court should reject any attempt to create artificial distinctions that treat same-sex conduct and sexual orientation as discrete concepts or treat sex discrimination as a lesser societal evil than other forms of workplace discrimination under Title VII. Accordingly, this Court should overturn Simonton and hold that sexual orientation discrimination is an actionable subset of sex discrimination under Title VII.

Dated: June 26, 2017

Respectfully submitted,

Law Offices of Susan Chana Lask

Professor Anthony Michael Kreis 565 West Adams Street Chicago, IL 60661 (312) 906-5321

/S/ SUSAN CHANA LASK By: Susan Chana Lask, Esq. 244 Fifth Avenue Suite 2369 New York, NY 10001 (917) 300-1958
Counsel for Amici Curiae

16

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that:
1. This brief complies with the type-volume limitation pursuant to Fed. R. App. P. 29(b)(4) totaling 3,505, words exclusive of the exempted portions of the brief.
2. This brief complies with the type-face and type-style requirements, as provided in Fed. R. App. P. 32(a)(5) and (6). It has been prepared in proportionally spaced typeface using Microsoft Word in 14 point Times New Roman font.
3. As permitted by Fed. R. App. P. 32(g)(1), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate.

Dated: June 26, 2017

Law Offices of Susan Chana Lask
/S/ SUSAN CHANA LASK By: SUSAN CHANA LASK, Esq. 244 Fifth Avenue Suite 2369 New York, NY 10001 (917) 300-1958 Counsel for Amici Curiae

17

 
 15-3775

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MELISSA ZARDA, co-independent executor of the estate of Donald Zarda; WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, v.
ALTITUDE EXPRESS, INC., d/b/a SKYDIVE LONG ISLAND; and RAYMOND MAYNARD, Defendants-Appellees.
On Appeal from the U.S. District Court for the Eastern District of New York Hon. Joseph Bianco, Judge
BRIEF OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL

GREGORY R. NEVINS

OMAR GONZALEZ-PAGAN

LAMBDA LEGAL DEFENSE AND

SHARON M. MCGOWAN

EDUCATION FUND, INC.

LAMBDA LEGAL DEFENSE AND

730 Peachtree Street NE, Suite 640

EDUCATION FUND, INC.

Atlanta, Georgia 30308

120 Wall Street, 19th Floor

(404) 897-1880

New York, New York 10005

(212) 809-8585

MICHAEL D.B. KAVEY

ATTORNEY AT LAW

144 North 7th Street #235

Brooklyn, New York 11249

(917) 623-8884

Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

CORPORATE DISCLOSURE STATEMENT Amicus curiae Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”) has no parent corporation(s), does not have shareholders, and does not issue stock.
ii

TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .........................................................2 TABLE OF CONTENTS ........................................................................................3 TABLE OF AUTHORITIES ..................................................................................5 STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................2 ARGUMENT .............................................................................................................3
I. SEXUAL ORIENTATION DISCRIMINATION IS A FORM OF SEX DISCRIMINATION.............................................................3
A. When Employers Discriminate Based On Sexual Orientation, They Necessarily Consider An Employee’s Sex. ......................................4
B. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII. ........................6
C. Tite VII Protects All Employees, Including LGB Employees, From Discrimination Based On Sex Stereotypes.......................................8
D. The Statutory Text And The Changed Legal Landscape Support Title VII Coverage of Sexual Orientation. ...................................9
II. ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL ORIENTATION DISCRIMINATION ARE WITHOUT MERIT. ..............12
A. The Hively Dissent Poses the Wrong Questions, and Misapplies Doctrines of Statutory Interpretation.....................................12
B. The Correct Comparator to a Man Attracted to Men is a Woman Attracted to Men. .................................................................16
1. Analogies to Interracial Association Cases Are Apt................................16 2. Manhart makes clear that the proper comparator in
this case is a woman attracted to men. ....................................................19 C. That Discrimination Based on Sex Stereotypes is
Prohibited by Title VII is Firmly Settled Law. ........................................22 D. Antigay Discrimination is Actionable Under Title VII
Under a Simple Sex-Plus Theory. ............................................................23
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E. Statutory Stare Decisis Is Of Relatively Little Weight in the Context of Courts of Appeals Decisions and of No Relevance When Such Decisions Conflict With Supreme Court Precedent. ............24
F. Courts Must Condemn All Discrimination “Because of . . . Sex,” Irrespective of Whether the Discrimination is Motivated by a Person’s Status, Behavior, Or Some Combination Thereof. ...................26
CONCLUSION ........................................................................................................28 CERTIFICATE OF COMPLIANCE.......................................................................30 CERTIFICATE OF SERVICE ................................................................................31
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TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .............................................................................................18
Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015) ..................................................................11
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) ............................................................ 4, 9, 21, 22, 27
Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. 2015) .........................5, 6
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016) ..............................................................7, 17
Bragdon v. Abbott, 524 U.S. 624 (1998) ...............................................................................................1
Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) .................................................................................21
Connecticut v. Teal, 457 U.S. 440 (1982) .............................................................................................23
Centola v. Potter, 5 183 F. Supp. 2d 403 (D. Mass. 2010)................................................................19
Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010) .............................................................................................27
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ......................................................................... passim
City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ..................................................................................... passim
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .............................................................. 2, 3, 7, 10, 11
v

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)..........................................................................................28
EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc) ................................................................22
EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ..............................................................2, 17
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending ................. passim
Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016) ..................................................................14
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...............................................................................................7
Foray v. Bell Atlantic, 56 F. Supp. 2d 327 (S.D.N.Y. 1999) ....................................................................10
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ........................................................................2, 22
Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014) .....................2, 6
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002).......................................................................6
Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc) ........................................................ passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) .................................................................. 7, 8, 13, 21
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015)...........................................................6, 17
Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015)..........................................................................................24
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Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012) ................................................................6
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................ 1, 10, 25, 26
Lewis v. City of Chicago, 560 U.S. 205 (2010) .............................................................................................28
Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................... 16, 17, 18
McLaughlin v. Florida, 379 U.S. 184 (1964) .............................................................................................17
Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) .................................................................................................8
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ...............................................................................................5
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)................................................................... 1, 10, 11, 25, 26
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) ...................................................................................... 8, 9, 28
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) ..............................................................................13
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) ............................................................................ 4, 20, 21, 27
Pond v. Braniff Airways, Inc., 500 F.2d 161 (5th Cir. 1974) ................................................................................27
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) .......................................................................... 3, 7, 8, 11, 22
Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc) ................................................................2
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Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015)..................................................................10
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................. 1, 25, 26
Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ...................................................................... 9, 11, 22
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ................................................................ 2, 3, 7, 10, 11
Smiley v. Citibank N.A., 517 U.S. 735 (1996) .............................................................................................15
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ................................................................................11
Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir. 1988) ...................................................................................27
Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971) ..............................................................................26
TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014)..........................................................................2
Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) .............................................................................................28
Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976)............................................................................14
United States v. Windsor, 133 S. Ct. 2675 (2013)............................................................................... 1, 25, 26
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) .....................................................................................5
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015)............................................................6, 19
viii

Vill. of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016) .................................................................................16
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .............................................................................................27
Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546 (2d Cir. 2007)............................................................................8
Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976)...........................................................................14
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013).......................... 11, 26
Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017) .................................................................................3, 5
Statutes 20 U.S.C. § 1092(f)(1)(F)(ii) ...................................................................................15 42 U.S.C. § 13925(b)(13)(A) ...................................................................................13 42 U.S.C. § 2000e et seq............................................................................................2 42 U.S.C. § 2000e-2(a)(1)..........................................................................................2 42 U.S.C. § 2000e-2(e) ..............................................................................................7 42 U.S.C. § 2000e-2(m) .........................................................................................3, 5
Rules Fed. R. App. P. 29(a)(4)(E)........................................................................................1 Fed. R. App. P. 29(b)(4) ..........................................................................................30 Fed. R. App. P. 32(a)(5)...........................................................................................30 Fed. R. App. P. 32(a)(6)...........................................................................................30 Fed. R. App. P. 32(g) ...............................................................................................30
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Fed. R. App. P. 32(g)(1) ..........................................................................................30 L.R. 29.1(b)................................................................................................................1
Other Authorities Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and
Gay Rights, 49 U.C.L.A. L. Rev. 519 (2001)...........................................................................17 Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-257 (1994......................................................... 18, 19 Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012).............................................................................13 Frank Easterbrook, Stability & Reliability in Judicial Decisions, 73 Cornell L. Rev. 422 (1988)..............................................................................24 Gary Mucciaroni, Same Sex, Different Politics: Success and Failure in the Struggles over Gay Rights (2008)..................................................14 Matt Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act ‘Unecessary,’ Mediaite (Nov. 14, 2013) .....................................................................................25 Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).............................................2 Plaintiffs-Appellants' Pet. for Reh’g En Banc, Zarda v. Altitude Express, No. 15-3775 (2d Cir. May 2, 2017) (ECF No. 255)...............................................1 Sexual Orientation, Oxford English Dictionary (2009 ed.)..................................................................12
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STATEMENT OF INTEREST1 Formed in 1973, Lambda Legal Defense and Education Fund, Inc. is the nation’s oldest and largest legal organization committed to achieving full recognition of the civil rights of lesbian, gay, bisexual, and transgender (“LGBT”) people and everyone living with HIV through impact litigation, education, and public policy
work. Lambda Legal has served as counsel or amicus in seminal cases regarding the rights of LGBT people and people living with HIV. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539 U.S. 558 (2003); Bragdon v. Abbott, 524 U.S. 624 (1998); Romer v.
Evans, 517 U.S. 620 (1996). Of special relevance here, Lambda Legal successfully represented the
plaintiff-appellant in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc), in which the Seventh Circuit recently held en banc “that discrimination on the basis of sexual orientation is a form of sex discrimination.” Id. at 341. It has also served as counsel or amicus curiae in many other employment
1 Amicus certifies that no party’s counsel authored this brief in whole or in part, and no person other than Amicus, its members, or its counsel made a monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(a)(4)(E); L.R. 29.1(b). Amicus’s counsel assisted with the petition for rehearing en banc in this case, see Plaintiffs-Appellants’ Pet. for Reh’g En Banc at 17, Zarda v. Altitude Express, No. 15-3775 (2d Cir. May 2, 2017) (ECF No. 255); this brief, however, reflects solely the work of Amicus’s counsel.
1

discrimination cases involving the rights of LGBT people. See, e.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), pet. for reh’g en banc pending; Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ; Hall v. BNSF Ry. Co., No. C13-2160, 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014); TerVeer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).
Amicus files this brief pursuant to the Court’s May 25, 2017 Order inviting “amicus curiae briefs from interested parties.” See Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017) (ECF No. 271).
INTRODUCTION In enacting Title VII, 42 U.S.C. § 2000e et seq., Congress established a statutory imperative to extinguish discrimination in employment “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Now, this Court sitting en banc must decide whether Title VII’s prohibition against sex discrimination encompasses sexual orientation discrimination claims. The panel in this case felt bound by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), both of which rejected Title VII coverage of sexual orientation; the panel thus adhered to a Title VII interpretation allowing employers to fire male employees, such as Donald Zarda, based on their attraction to men, even where
2

women with identical attractions face no such adverse treatment, see Zarda v. Altitude Express, 855 F.3d 76, 80-82 (2d Cir. 2017). However, neither Simonton nor Dawson—nor any other opinion of this Court—has addressed the multiple “persuasive” reasons that support a holding that Title VII’s bar on sex discrimination encompasses antigay discrimination. See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring). This full Court should endorse these “persuasive” arguments and overrule Simonton and Dawson, thereby bringing this Court’s caselaw into compliance with Title VII’s mandate to “treat[] each of the enumerated categories exactly the same,” Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989) (plurality), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(m), and fulfilling the Court’s obligation to entertain all claims alleging adverse treatment in employment based on “sex-based considerations.” Id. at 242.
ARGUMENT After elaborating in Part I on the principal rationales supporting Title VII coverage of sexual orientation, Part II addresses and refutes recent counterarguments from a few judges in other cases, particularly in Hively. I. SEXUAL ORIENTATION DISCRIMINATION IS A FORM OF
SEX DISCRIMINATION. For at least three reasons, “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively, 853 F.3d at 341. First, under a basic sex
3

discrimination (or “sex-plus”) theory,2 such discrimination necessarily involves sexbased considerations because the discrimination endured by a man based on his attraction to men is not suffered by any woman with an identical attraction to men. Second, just as discrimination against an employee who is romantically involved with someone of a different race has universally been recognized as race discrimination barred by Title VII, discrimination against an employee who is attracted to someone of the same sex must be recognized as sex discrimination equally barred by that law. Finally, under a sex stereotyping theory, sexual orientation discrimination is sex discrimination because it rests on the sex-specific stereotype that men are or should be attracted only to women, and that women are or should be attracted only to men.
A. When Employers Discriminate Based On Sexual Orientation, They Necessarily Consider An Employee’s Sex.
First, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.” Christiansen, 852 F.3d at 202 (Katzmann, C.J.,
2 “Sex-plus” is the term for discrimination occurring not categorically against all members of one sex, but only those members sharing a certain trait (for instance, having young children), when members of the other sex who share that trait suffer no discrimination. Title VII unquestionably bars sex-plus discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); cf. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 n.9 (2d Cir. 2004) (“any meaningful regime of antidiscrimination law must encompass” sex-plus claims).
4

concurring). That is because “sexual orientation is inseparable from and inescapably
linked to sex.” Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5 (E.E.O.C. 2015).3 Conceptually, this is a straightforward formulation. The Court
need only ask whether the employee would have faced discrimination if the
employee had been of a different sex. See City of Los Angeles Dep’t of Water &
Power v. Manhart, 435 U.S. 702, 711 (1978) (articulating the controlling, yet
“simple[,] test of whether the evidence shows treatment of a person in a manner
which but for that person’s sex would be different” to determine whether a sex-based
violation of Title VII occurred) (internal quotation marks omitted); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682-83 (1983).4 If the
employee would have been treated differently had they been of the other sex, then
the discrimination was based on sex.
Thus, where an employer fires a female employee because the employee is
married to (or lives with, dates, or is attracted to) a woman but would not fire a male
3 This is not to say that “sex” and “sexual orientation” are interchangeable concepts or terms, see infra Part II.A; the salient point is, rather, that an individual’s sexual orientation is defined in relation to sex, and that antigay discrimination necessarily takes account of an individual’s sex. 4 While a plaintiff satisfying Manhart’s “but-for” test necessarily satisfies Title VII’s causation requirement, Title VII plaintiffs may also prevail based on “the less stringent ‘motivating-factor’ test.” Zarda, 855 F.3d at 81-82 (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)); see also 42 U.S.C. § 2000e–2(m).
5

employee for identical conduct with (or attraction to) a woman, the employer has engaged in “paradigmatic sex discrimination.” Hively, 853 F.3d at 345. See also Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015) (“If a business fires Ricky because of his sexual activities with Fred, while this action would not have been taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.”) (alterations, citation omitted).
A growing number of courts have recognized the logic of this position. See, e.g., Hively, 853 F.3d at 350-51; id. at 358 (Flaum, J., concurring); Hall, 2014 WL 4719007, at *3; Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1161 (C.D. Cal. 2015); Baldwin, 2015 WL 4397641, at *5.
B. Discrimination Based On Same-Sex Relationships Is Analogous To Discrimination Based On Interracial Relationships, And Therefore Equally Violates Title VII.
Second, sexual orientation discrimination is sex discrimination because it treats otherwise similarly-situated people differently because of their sex, viewed in relation to the sex of the individuals with whom they associate (or to whom they are attracted). Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring); see also Hively, 853 F.3d at 347-48; id. at 359 (Flaum, J., concurring).
6

This Court and many others have already adopted this reasoning in the context of race discrimination. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), a case post-dating Simonton and Dawson, this Court held for the first time that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139; see also id. (citing district and appellate decisions endorsing this reasoning). Holcomb’s holding that discrimination based on an employee’s interracial associations constitutes race discrimination cannot “be legitimately reconciled” with an argument that discrimination based on a worker’s same-sex intimate relationships is not sex discrimination. Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255, 268 (D. Conn. 2016).
It bears emphasizing that, notwithstanding the sometimes considerable difference, historically and socially, among the kinds of discrimination prohibited under Title VII, the Supreme Court has made clear that courts should treat discrimination under the enumerated traits the same, because the statue “on its face treats each of the enumerated categories exactly the same.”5 Price Waterhouse, 490 U.S. at 243 n.9; see also Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1
5 The statute delineates limited, narrow exceptions to this rule that are not relevant here. See 42 U.S.C. § 2000e–2(e); Christiansen, 852 F.3d at 204 n.1 (Katzmann, C.J., concurring).
7

(1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986); Manhart, 435 U.S. at 709; Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 549 n.2 (2d Cir. 2007); cf. Oncale v. Sundower Offshore Servs., 523 U.S. 75, 78 (1998) (rejecting attempt to exclude all same-sex harassment from Title VII’s scope, noting that “we have rejected any conclusive presumption that an employer will not discriminate against members of his own race”).
Accordingly, this Court should apply Holcomb’s straightforward and widely accepted reasoning to claims under Title VII’s sex-discrimination provision, and hold that Title VII protects employees from employment discrimination based on their association with persons of a particular sex, just as it protects against discrimination based on interracial association.
C. Tite VII Protects All Employees, Including LGB Employees, From Discrimination Based On Sex Stereotypes.
Finally, sexual orientation discrimination is sex discrimination “because such discrimination is inherently rooted in gender stereotypes,” Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring), and because discrimination based on such stereotypes indisputably violates Title VII. See Price Waterhouse, 490 U.S. at 251 (“As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match[] the
8

stereotype associated with their group.”); Christiansen, 852 F.3d at 200; Sassaman v. Gamache, 566 F.3d 307, 312-13 (2d Cir. 2009); Back, 365 F.3d at 130.6
An individual’s same-sex attraction “represents the ultimate case of failure to conform to [a sex] stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).” Hively, 853 F.3d at 346; see also Christiansen, 852 F.3d at 205 (Katzmann, C.J., concurring); Evans, 850 F.3d at 1264 (Rosenbaum, J., dissenting). It is thus untenable to suggest that Title VII does not cover discrimination based on this attraction.
D. The Statutory Text And The Changed Legal Landscape Support Title VII Coverage of Sexual Orientation.
Hively and the Christiansen concurrence not only endorsed each of the three arguments discussed above for Title VII coverage of sexual orientation, but they also noted the flaw in arguments that emphasize what words are not in the statute, rather than “the scope of the language that already is in the statute.” Hively, 853 F.3d at 344-49; see also Christiansen, 852 F.3d at 207 (Katzmann, C.J., concurring) (criticizing reliance on subsequently proposed, unenacted bills to interpret Title VII). Focusing on non-statutory considerations contravenes Oncale, which emphasized
6 While Back was brought under 42 U.S.C. § 1983, this Court made clear that the analysis was the same under Title VII. See also Sassaman, 566 F.3d at 313 (relying on Back in Title VII case).
9

that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U.S. at 79.
The above three arguments for coverage also “reflect the evolving legal landscape since [Simonton and Dawson],” Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring), including the changed “backdrop of the Supreme Court’s decisions . . . in the area of broader discrimination on the basis of sexual orientation.” Hively, 853 F.3d at 349; see also Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 348 (E.D.N.Y. 2015).
For example, while the right of same-sex couples to marry is now recognized as fundamental, see Obergefell, 135 S. Ct. at 2604-05, not a single state recognized same-sex marriage at the time Simonton was decided. Indeed, Simonton predates even Lawrence, 539 U.S. 558, before which intimate relations between same-sex couples could be criminalized. It is thus not surprising that courts at that time did not consider the arguments advanced here. Cf. Foray v. Bell Atlantic, 56 F. Supp. 2d 327, 329-30 (S.D.N.Y. 1999) (noting support for plaintiff’s claim that benefits eligibility based on one’s sex in relation to the sex of one’s partner is actionable sex discrimination under Title VII if same-sex and different-sex couples were similarly situated with respect to marriage, which was not the case in 1999). In the postLawrence, post-Obergefell world, however, such perspectives must be reconsidered. See Christiansen, 852 F.3d at 204 (Katzmann, C.J., concurring) (“[I]t makes little
10

sense to carve out same-sex relationships as an association to which [Title VII’s]
protections do not apply, particularly where, in the constitutional context, the
Supreme Court has held that same-sex couples cannot be ‘lock[ed] . . . out of a
central institution of the Nation’s society.’” (quoting Obergefell, 135 S. Ct. at
2602)).
Moreover, Simonton’s and Dawson’s sexual orientation analysis under Title
VII is inconsistent with, and raises constitutional concerns under this Court’s ruling
in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675
(2013), adopting heightened constitutional protection for lesbians and gay men. Id.
at 181-82.7 It would be untenable for this Court, having deemed sexual orientation
classifications “quasi-suspect,” id., to perpetuate a judicial bar on otherwise viable
sex-stereotyping and associational-gender claims precisely because they involve
sexual orientation discrimination, or to again single out sex-discrimination claims
by “avowedly homosexual” plaintiffs as a “problem.” Dawson, 398 F.3d at 218.8
7 Windsor’s test for heightened scrutiny remains the law in this circuit, see Adkins v. City of New York, 143 F. Supp. 3d 134, 139–40 (S.D.N.Y. 2015), even if the Supreme Court was not explicit about the application of heightened scrutiny when affirming this Court’s decision on the merits. See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 480-84 (9th Cir. 2014) (interpreting Supreme Court’s Windsor decision as requiring heightened scrutiny for sexual orientation). 8 This Court’s straightforward application of Price Waterhouse in Sassaman, 566 F.3d 307, which involved a stereotype about male-female sexual harassment, sharpens the tension between the Court’s general acceptance of sex-stereotyping doctrine and its suspicion of sex-stereotyping claims by gay plaintiffs, Dawson, 398
11

II. ARGUMENTS AGAINST TITLE VII’S COVERAGE OF SEXUAL ORIENTATION DISCRIMINATION ARE WITHOUT MERIT.
While a majority of appellate judges to have addressed the issue at bar within
the last year have found convincing all or some of the above-noted arguments for Title VII coverage of sexual orientation,9 the three dissenting judges in Hively, as
well as the concurrence in Evans, raise opposing arguments that, while
unconvincing, warrant analysis and refutation.
A. The Hively Dissent Poses the Wrong Questions, and Misapplies Doctrines of Statutory Interpretation.
The Hively dissent belabors the irrelevant point that “‘sexual orientation’. . . is not synonymous with ‘sex.’” Hively, 853 F.3d at 363 n.3 (Sykes, J., dissenting) (hereinafter “Hively dissent”) (citing Sexual Orientation, Oxford English Dictionary (2009 ed.)); see also id. at 363 (“The two terms are never used interchangeably . . . .”). The issue before this Court, however, is whether antigay discrimination is discrimination because of a person’s sex. To prevail on that issue, it is wholly unnecessary for Plaintiffs-Appellants to demonstrate that “sexual orientation” and “sex” are synonyms or that they are interchangeable concepts or terms. The terms
F.3d at 218. 9 This includes not only Chief Judge Katzmann (joined by District Judge Brodie), see Christiansen, 852 F.3d at 204-07 (Katzmann, C.J., concurring), and eight of eleven judges in Hively, see 853 F.3d at 345-59, but also Judge Rosenbaum of the Eleventh Circuit, who called on her circuit to reconsider the issue en banc, see Evans, 850 F.3d at 1261-73 (Rosenbaum, J., dissenting).
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“race” and “interracial marriage” are not synonyms and not used interchangeably; nevertheless, this Court and many others have recognized that “[w]here a plaintiff
claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.” Holcomb, 521 F.3d at 139 (quoting Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)).10
The Hively dissent fares no better when it contends that subsequent legislative enactments expressly prohibiting discrimination based on both “sexual orientation” and “sex” somehow confirm that these types of discrimination do not overlap under
Title VII. For one, Title VII and the subsequent enactments to which the Hively dissent
refers were not enacted in the same legal era. The first statutory provision cited in
this section of the Hively dissent, for example, is 42 U.S.C. § 13925(b)(13)(A), enacted as part of the 2013 Violence Against Women Reauthorization Act. In contrast, Title VII passed in 1964, when the practice of expressly and separately
10 The Hively dissent also insists on adherence to Title VII’s “original public meaning”—employing a phrase popular among some professors but wholly absent from the Supreme Court’s voluminous Title VII jurisprudence. See Hively dissent, 853 F.3d at 360, 362. Ascertaining Title VII’s “original public meaning” is not, moreover, the simple exercise that the Hively dissent assumes. See generally Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307 (2012). And even under a narrow definition of sex discrimination, sexual orientation discrimination fits the definition. See Hively, 853 F.3d at 345-46.
13

enumerating “sexual orientation” in civil rights legislation had not yet emerged. The
first ordinance and state statute expressly banning such discrimination in private
employment were passed respectively in East Lansing, Michigan in 1972, and in Wisconsin in 1982. Gary Mucciaroni, Same Sex, Different Politics: Success and Failure in the Struggles over Gay Rights 213 n.12 (2008). But even though a
particular manifestation of discrimination covered by Title VII has become so pronounced or well-understood that it now has a separate designation (“sexual harassment,” “Islamaphobia,” “sexual orientation discrimination”), that does not change the coverage analysis or require specific, separate statutory enumeration. See Hively, 853 F.3d at 350 n.5.11 It is anachronistic to rely on recent legislation specifically enumerating “sexual orientation” to justify a narrow interpretation of a
broadly worded statutory provision from fifty years ago that prohibits discrimination “because of . . . sex.” See Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509, 527 n.12 (D. Conn. 2016) (interpreting sex discrimination provision in Connecticut state law to cover discrimination against transgender individuals even before specific
11 “Sexual harassment” was not in the legal or social lexicon in 1964, and four of the first five courts to consider whether sexual harassment was discrimination “because of . . . sex” answered in the negative. See Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 556 (D.N.J. 1976) (noting that, of the first five cases deciding whether Title VII covers sexual harassment, Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), stood alone as the only court holding in the affirmative). Nevertheless, Title VII’s coverage of sexual harassment has been hornbook law for over three decades.
14

amendment “that added ‘gender identity or expression’ to the list of protected classes” because the added “language does not require the conclusion that gender identity was not already protected by the plain language of the statute, because legislatures may add such language to clarify or to settle a dispute about the statute’s scope rather than solely to expand it.”).
Arguing that discrimination “because of . . . sex” in Title VII excludes sexual orientation discrimination could possibly make sense if, for example, Title II, passed the same year, had proscribed discrimination based on both “sex” and “sexual orientation.” There are occasions when significance may be attached to the fact that the same statute uses two terms in a way suggesting they are mutually exclusive, see Smiley v. Citibank N.A., 517 U.S. 735, 746 (1996), but of course, that is not the case here. As Smiley explained, a “word often takes on a more narrow connotation when it is expressly opposed to another word: ‘car,’ for example, has a broader meaning by itself than it does in a passage speaking of ‘cars and taxis.’” 517 U.S. at 746. But “sex” in Title VII “is not used in contradistinction to” the term “sexual orientation,” and therefore, “there is no reason why” discrimination because of an individual’s sex “cannot include” sexual orientation discrimination. Id. at 746-47.
The Hively dissent’s logic would also disrupt other areas of Title VII law. For example, the dissent cites 20 U.S.C. § 1092(f)(1)(F)(ii) as evidence that Congress distinguishes between discrimination based on “sex” and discrimination based on
15

“sexual orientation,” noting that this statute enumerates the traits separately. But that statute also enumerates “ethnicity” separately from “race” and “national origin.” Under the Hively dissent’s logic, therefore, Title VII—which does not enumerate “ethnicity”—should not be interpreted to cover discrimination based on ethnicity. This is untenable under Second Circuit precedent. See Vill. of Freeport v. Barrella, 814 F.3d 594, 606-607 (2d Cir. 2016) (holding “that discrimination based on ethnicity, including Hispanicity or lack thereof, constitutes racial discrimination under Title VII.”).
B. The Correct Comparator to a Man Attracted to Men is a Woman Attracted to Men.
When using a comparator analysis to determine whether discrimination against a gay person is based on sex, the proper comparator to a gay man, i.e. a man attracted to men, is a woman attracted to men, as Chief Judge Katzmann noted in his Christiansen concurrence. See 852 F.3d at 203. The counterargument espoused by the Hively dissent, 853 F.3d at 366, that the correct comparator to a gay man fired because of his attraction to men is a lesbian, cannot be squared with logic or wellsettled law, including Loving v. Virginia, 388 U.S. 1 (1967), and Manhart, 435 U.S. at 711.
1. Analogies to Interracial Association Cases Are Apt. Contrary to the Hively dissent’s contention, analogies to cases on interracial
16

association, including Loving, are apt.12 As the Christiansen concurrence recognized, the Supreme Court held that treating all members of interracial relationships the same, but less favorably than members of intraracial relationships, was a race–based classification. 852 F.3d at 203 (Katzmann, C.J., concurring) (alteration in original). “The same logic suggests that it is sex discrimination to treat all individuals in same–sex relationships the same, but less favorably than individuals in opposite–sex relationships.” Id.
Loving invalidated Virginia’s anti-miscegenation law not only because it endorsed “White Supremacy,” 388 U.S. at 11, but also based on the racial classification on the law’s face, see id. at 8-9. And, Loving was preceded by McLaughlin v. Florida, 379 U.S. 184 (1964), which invalidated a Florida law criminalizing interracial cohabitation—without any discussion of “White Supremacy.” See id. at 188, 191-92, 195 (holding that law impermissibly classified based on race even though law applied equally to “all whites and [blacks] who engage in the forbidden conduct”). As one scholar has explained, “McLaughlin did not rely on any claims whatsoever about the motive for the law or about the class
12 As noted above, see Part I.B, supra, support for Title VII coverage of sexual orientation discrimination by analogy to discrimination against those in interracial relationships has enjoyed wide and enthusiastic judicial support. See, e.g., Hively, 853 F.3d at 359 (Flaum, J., concurring); Boutillier, 221 F. Supp. 3d at 268; Scott Med. Health Ctr., P.C., 217 F. Supp. 3d at 840 n.5; Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193-94 (M.D. Ala. 2015).
17

that was harmed by the law,” yet “noted that there was a racial classification and applied heightened scrutiny”; the “sex discrimination argument for protecting gays from discrimination requires nothing more.” Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519, 522-23 & n.19 (2001) (footnote omitted).
In any event, the Hively dissent ignores decades of constitutional and statutory case law by suggesting that a law or policy that draws distinctions based on race or sex should not be analyzed as a racial or sex-based classification unless it aims to promote racial supremacy or the subjugation of women. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-27 (1995) (holding that “all racial classifications” by governmental actors trigger strict judicial scrutiny, regardless of motive).
Finally, while the above-noted reasoning more than suffices to expose the error in the Hively dissent’s Loving analysis, it is also worth pointing out that the dissent’s error runs even deeper: By claiming that “[n]o one argues that sexualorientation discrimination aims to promote or perpetuate the supremacy of one sex,” 853 F.3d at 368, the Hively dissent overlooks decades of extensive scholarship and advocacy—and numerous judicial opinions—exploring the relationship between antigay oppression and the gender norms that have traditionally privileged men and masculinity. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians
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and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234-257 (1994) (discussing “[t]he connection between sexism and the homosexuality taboo”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2010); Videckis, 150 F. Supp. 3d at 1160.
2. Manhart makes clear that the proper comparator in this case is a woman attracted to men.
As Chief Judge Katzmann explains, “Manhart tells us that sex discrimination is treating someone ‘in a manner which but for that person’s sex would be different,’” Christiansen, 852 F.3d at 203 (Katzmann, C.J., concurring) (quoting Manhart, 435 U.S. at 711); this suggests that when we “evaluat[e] a comparator for a gay, lesbian, or bisexual plaintiff” to determine whether sex discrimination has occurred, “we must hold every fact except the sex of the plaintiff constant— changing the sex of both the plaintiff and his or her partner would no longer be a ‘but–for–the–sex–of–the–plaintiff’ test.” Id. Thus, when using a comparator method to determine whether an employer has discriminated against a gay male plaintiff because of sex, the relevant inquiry is whether the employer treats a man attracted to men differently than it treats a woman attracted to men.
Under the Hively dissent’s reasoning, however, comparing a man attracted to a man with a woman attracted to a man involves changing “two variables—the plaintiff’s sex and sexual orientation,” and the comparison therefore fails, in the dissent’s view, to “hold everything constant except the plaintiff’s sex.” 853 F.3d at
19

366 (citing majority opinion, 853 F.3d at 345-46). The logic of this counterargument, however, unravels on inspection: The dissent’s framing is premised on the notion that a man attracted to men and a woman attracted to men have different sexual orientations, see id.; the dissent thus acknowledges (implicitly, and perhaps unwittingly) that a person’s sexual orientation is necessarily defined, in part, by his or her own sex. That acknowledgment effectively concedes Amicus’s and the Chief Judge’s point.
Put more simply, the Hively dissent cheats by including the “sum” in the equation. Consider this scenario: if you take vodka and orange juice, and then swap grapefruit juice for the orange juice, have two things changed, or just one thing? Under Chief Judge Katzmann’s logic, the answer is clearly “one thing,” while the Hively dissent would argue that what was a screwdriver is now a greyhound, so two things have changed. Thus, the Hively dissent’s cute parlor trick, if adopted, could be used to defeat any application of the comparator method. For example, one could argue that a company’s policy of firing women with small children cannot properly be compared to its policy of hiring men with small children, because such a comparison changes too many variables; rather than simply comparing women to men, it compares women who are mothers to men who are fathers. This absurd application of the comparator method, however, should and would fail. See Phillips, 400 U.S. at 544.
20

Perhaps recognizing that its argument falls flat, the Hively dissent denigrates the very exercise of comparator framing. See 853 F.3d at 366 (“the comparative
method of proof is an evidentiary test; it is not an interpretive tool. It tells us nothing about the meaning or scope of Title VII.” (emphasis omitted)). The dissent cites no support for its far-fetched theory that courts can learn “nothing”
about Title VII’s scope by comparing the treatment of men and women, and case
law does not support it. There was no evidentiary dispute before the Court in Phillips, for example; rather, the Justices compared the employer’s policy on women with small children to the employer’s very different policy on men with small
children, and held that the Fifth Circuit “erred in reading [Title VII] as permitting one hiring policy for women and another for men . . . .” 400 U.S. at 544. Under this Court’s precedent, moreover, if an employer punishes a white man who marries a
black woman but does not punish a similarly situated black man for marrying a black woman, the employer violates Title VII as a matter of law; this isn’t a claim about facts or evidence, but about the “meaning and scope” of Title VII’s protections, as determined in Holcomb, 521 F.3d at 139-40.13
13 To the extent the Hively dissent merely believes that disputes over comparators are often an unnecessary distraction in Title VII cases, Amicus could not agree more. A plaintiff may prove discrimination even without the existence of comparators or “similarly situated” employees, Back, 365 F.3d at 121, “because the ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.” Id. (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
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C. That Discrimination Based on Sex Stereotypes is Prohibited by Title VII is Firmly Settled Law.
Perhaps the Hively dissent’s most radical argument is its challenge to Price Waterhouse’s universally-recognized and still current holding that Title VII prohibits discrimination based on sex stereotypes. It is simply wrong to suggest there was any daylight between the four-justice plurality and the two concurring justices regarding whether Ann Hopkins had proven discrimination based on impermissible stereotypes. See Price Waterhouse, 490 U.S. at 259 (White, J., concurring) (“her burden was to show that the unlawful motive was a substantial factor in the adverse employment action. . . . and I agree that the finding was supported by the record.”); id. at 272 (O’Connor, J., concurring) (“Hopkins proved that Price Waterhouse ‘permitt[ed] stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner,’” and thus “proved discriminatory input [in] the decisional process” (citation omitted)).
It is thus not surprising that this Court, and every other appellate court of which Amicus is aware, has agreed that Title VII condemns sex stereotyping discrimination. See Christiansen, 852 F.3d at 200 (observing that six Justices in Price Waterhouse endorsed view that discrimination based on sex stereotypes violates Title VII); Back, 365 F.3d at 119; Sassaman, 566 F.3d at 312-14; see also EEOC v. Boh Bros., (5th Cir. 2014) (en banc); Glenn, 663 F.3d 1312.
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D. Antigay Discrimination is Actionable Under Title VII Under a Simple Sex-Plus Theory.
Perhaps the weakest anti-coverage argument advanced is that sexual orientation discrimination does not involve wholesale discrimination against either gender, but only discrimination against a particular subset of a gender sharing the same attribute. This hasn’t been a tenable argument since 1971, when the Supreme Court unanimously held that Martin Marietta’s impressive track record of giving women jobs didn’t save a policy whereby some women – those with young children – were fired, while men with young children kept their jobs. Thus the response to the Hively dissent’s odd assertion of how difficult it would be to “explain . . . to a jury” that sex discrimination had occurred if Kim Hively had been replaced with heterosexual women, see Hively dissent, 853 F.3d at 373, would be to posit a scenario where six women were fired for refusing their supervisor’s sexual demands. Even if all six positions were later backfilled by other women, no jury would struggle to grasp that the fired women had suffered discrimination because of sex. See Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of . . . sex merely because [it] favorably treats other members of the employees’ group.”); Hively, 853 F.3d at 346 n.3 (“A failure to discriminate against all women does not mean that an employer has not discriminated against one woman on the basis of sex.”).
23

E. Statutory Stare Decisis Is Of Relatively Little Weight in the Context of Courts of Appeals Decisions and of No Relevance When Such Decisions Conflict With Supreme Court Precedent.
Statutory stare decisis carries little weight when one relies only on the authority of lower courts, in the face of conflicting, better reasoned lower court decisions and legal scholarship. As Hively points out, the Supreme Court, when pronouncing definitively the law of the land, has not been shy about rejecting the view of the law held by the overwhelming majority of lower courts. See Hively, 853 F.3d at 350 n.6. In a recent case that was a high water mark for endorsing statutory stare decisis, the Supreme Court made clear that it considered the principle to be applicable to its decisions. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015) (defining “statutory stare decisis” as when “this Court interprets and Congress decides whether to amend” and that the principle “assumes Congress will correct whatever mistakes we commit.”) (emphasis added).
Among the many concerns regarding how much weight to give Congressional inaction is the constitutional problem associated with giving either house a “legislative veto” over an attempt to cure a judicial misinterpretation. Frank Easterbrook, Stability & Reliability in Judicial Decisions, 73 Cornell L. Rev. 422, 426-28 (1988). This concern is far from academic. In November 2013, the Senate passed, 64-32, legislation prohibiting sexual orientation discrimination (the
24

Employment Non-Discrimination Act, or “ENDA”) that the President was willing to sign. However, the House of Representatives refused to act on the bill. See Matt Wilstein, Boehner Calls LGBT Employment Non-Discrimination Act ‘Unecessary,’ Mediaite (Nov. 14, 2013), at http://www.mediaite.com/tv/boehner-calls-lgbtemployment-non-discrimination-act-unnecessary.
Despite its acknowledgment that the Supreme Court has not “weigh[ed] in” on this issue, see Hively dissent, 853 F.3d at 361, the Hively dissent also makes the unsupported claim that four Supreme Court cases are “irreconcilable” with Title VII coverage of sexual orientation. Id. at 372 (citing Romer, 517 U.S. 620; Lawrence, 539 U.S. 558; Windsor, 133 S. Ct. 2675; and Obergefell, 135 S. Ct. 2584)). However, none of these decisions addressed—much less rejected—the argument that sexual orientation discrimination constitutes sex discrimination. The Hively dissent does not point to any language from any of the cases suggesting otherwise; instead, its argument appears to rest on the manifestly mistaken premise that the Supreme Court’s endorsement of one constitutional argument to invalidate a legal provision necessarily implies the rejection of alternative arguments that were or could have been advanced in support of the Court’s judgment. See Hively dissent, 853 F.3d at 372. This is not the law, as the very cases cited by the dissent make clear. For example, in holding that Texas’s Homosexual Conduct Law violated the Due Process Clause, Lawrence did not expressly invoke the language of
25

“fundamental rights,” nor did it adopt any of the equal protection rationales advanced by the parties and amici. See 538 U.S. at 574-75. None of this, however, stood in the way of the Court’s fundamental-rights and equal-protection rulings in later cases recognizing constitutional protections for same-sex relationships. See Obergefell, 135 S. Ct. at 2604-05; Windsor, 133 S. Ct. at 2695-96. Similarly, while Romer and Lawrence declined to address whether discrimination based on sexual orientation triggers heightened scrutiny under the Equal Protection Clause, they did not preclude lower courts from addressing that issue themselves or from resolving it in favor of heightened scrutiny, as this Court made clear in Windsor. See, e.g., Windsor, 699 F.3d at 179-185.
F. Courts Must Condemn All Discrimination “Because of . . . Sex,” Irrespective of Whether the Discrimination is Motivated by a Person’s Status, Behavior, Or Some Combination Thereof.
In his Evans concurrence, Judge William Pryor posits that Title VII cannot provide “relief based on status,” because that “would undermine the relationship between the doctrine of gender nonconformity and the enumerated classes protected by Title VII.” Evans, 850 F.3d at 1258 (Pryor, J., concurring). But case law makes clear that, if the employer is taking gender into account, it violates Title VII even if the discrimination also arises from a “status” that is covered in some antidiscrimination laws, but is not enumerated in Title VII. Plainly, the termination of married women in Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971), and
26

of women with young children in Phillips and in Back, could also be deemed discrimination based on “marital status” or “parental status/familial status.” Under Title VII, the relevance of “status” is that if men and women have the same status (e.g., “married,” or “with young children,” or “in a relationship with a man”), an employer cannot treat the men having that status differently than the women having that status.
And contrary to the Evans’s concurrence limited view of what constitutes sex stereotyping, many cases throughout Title VII’s history reflect the broad understanding of sex stereotypes that the statute combats, including stereotypes about life choices about families and relationships. See, e.g., Sobel v. Yeshiva Univ., 839 F.2d 18, 33 (2d Cir. 1988) (refusing to credit “stereotype” that men are more often sole wage earners); Pond v. Braniff Airways, Inc., 500 F.2d 161, 166 (5th Cir. 1974) (discrimination based on “stereotypical culturally-based concepts of the abilities of people to perform certain tasks because of their sex” violates Title VII); cf. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding statute rooted in stereotype that families depend on male breadwinners unconstitutional).
Moreover, Judge Pryor’s attempt at distinguishing between status and conduct in his Evans concurrence has been resoundingly repudiated by the Supreme Court. See Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the
27

Law v. Martinez, 561 U.S. 661, 689 (2010) (“Our decisions have declined to distinguish between status and conduct in this context.”).
In short, the Evans concurrence’s creation of a status/conduct distinction is another example of a judge-crafted exception to the full coverage of Title VII’s proscription against sex discrimination, a trend that has been decried by the Supreme Court in Oncale and frequently thereafter. See Lewis v. City of Chicago, 560 U.S. 205, 215 (2010) (It is not for the courts “to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.”); id. at 217 (court’s “charge is to give effect to the law Congress enacted” even if “effect was unintended”); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011); EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015).
CONCLUSION Therefore, Amicus Lambda Legal respectfully urges the Court to hold that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII. Dated this 26th day of June, 2017.
28

Respectfully submitted,

/s/ Gregory R. Nevins GREGORY R. NEVINS LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 730 Peachtree Street NE, Suite 640 Atlanta, Georgia 30308 (404) 897-1880
MICHAEL D.B. KAVEY ATTORNEY AT LAW 144 North 7th Street #235 Brooklyn, New York 11249 (917) 623-8884

/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN SHARON M. MCGOWAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005 (212) 809-8585

Counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

29

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that: 1. This petition complies with the type-volume limitation, as provided in Fed. R. App. P. 29(b)(4), because, exclusive of the exempted portions of the brief, the brief contains 6,845 words. 2. This brief complies with the type-face requirements, as provided in Fed. R. App. P. 32(a)(5), and the type-style requirements, as provided in Fed. R. App. P. 32(a)(6), because the brief has been prepared in proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New Roman font. 3. As permitted by Fed. R. App. P. 32(g)(1), the undersigned has relied upon the word count feature of this word processing system in preparing this certificate. Dated this 26th day of June, 2017.
/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005
30

CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing brief with the Clerk of the United States Court of Appeals for the Second Circuit via the CM/ECF system this 26th day of June, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Omar Gonzalez-Pagan OMAR GONZALEZ-PAGAN LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, New York 10005
31

 
 15-3775

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Plaintiffs-Appellants
-againstALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD, Defendants-Appellees
En Banc Rehearing of the Panel Opinion Reported at 855 F. 3d. 76 (2d. Cir. 2017)

APPELLEES’ BRIEF & SUPPLEMENTAL APPENDIX

ZABELL & ASSOCIATES, P.C. Saul D. Zabell, Esq. Attorney for Defendants-Appellees 1 Corporate Dr., Suite 103 Bohemia, NY 11716 (631) 589-7242

Filed: July 26, 2017

RULE 26.1 STATEMENT
Pursuant Rule 26.1 of the Federal Rules of Appellate Procedure and to enable Judges of this Court to evaluate possible disqualification or recusal, the undersigned counsel for Defendants states as follows:
Defendant Altitude Express, Inc., d/b/a Skydive Long Island, is a domestic business corporation organized and existing under the laws of the State of New York.
Defendant Altitude Express, Inc., d/b/a Skydive Long Island is not a governmental entity, there are no parent corporations, nor does any publicly held corporation hold 10% of its stock.

Dated: Bohemia, New York July 26, 2017

ZABELL & ASSOCIATES, P.C. Attorneys for Appellees

...A......

Digitally signed by Saul D. Zabell Date:2017.07.2612:27:21 -04'00'

By:~~~--~---~_·-~~~~~~~~~

Saul D. Zabell (SZ 2738)

Fax: (631) 563-7475

szabell@laborlawsny.com

TABLE OF CONTENTS TABLE OF AUTHORITIES ……………………………………………………………... ii ISSUE PRESENTED ...............................................................................................................1 JURISDICTION .....................................................................................................................2 PROCEDURAL HISTORY ...................................................................................................4 STATEMENT OF FACT ........................................................................................................7 ARGUMENT ..........................................................................................................................15
1. TITLE VII DOES NOT EXTEND TO SEXUAL ORIENTATION .....................15 2. THIS PANEL LACKS AUTHORITY TO RENDER
AN ADVISORY OPINION .......................................................................................16 i. ADVISORY OPINIONS ARE IMPERMISSABLE ...................................17 ii. NO RELIEF FLOWS FROM THE COURT’S ANTICIPATED AFFIRMATIVE ANSWER ..........................................................................18 a. FILING AN EEOC CHARGE IS A MANDATORY PREREQUISITE TO PURSUING RELEIF UNDER TITLE VII....20 b. WHERE THERE EXISTS AN EXPRESS DENIAL OF A CLAIM WITHIN AN EEOC CHARGE, SUCH A CLAIM CANNOT BE REASONABLY RELATED TO THE CHARGE ...............................24 c. AN AFFIRMATIVE ANSWER OVERTURNS A DECISION BY THE LOWER COURT WITHOUT CONSEQUENCE .....................28
iii. THE ESTATE LACKS STANDING TO INITIATE A TITLE VII ACTION ON BEHALF OF ZARDA ...........................................................30
CONCLUSION ......................................................................................................................35
i

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT
Aetna Life Ins. Co. v. Haworth 300 U.S. 227 (1937)………………………………………………………. 17
Chafin v. Chafin 568 U.S. 165 (2013)………………………………..………………..…16, 17
Clapper v. Amnesty Int’l USA 568 U.S. 398 (2013)……………………...…………………………………16
DaimlerChrysler Corp. v. Cuno 547 U.S. 332 (2006)………………………………………………………...16
Lewis v. Continental Bank Corp. 494 U.S. 472 (1990)……………………………………………………17, 35
Lujan v. Defenders of Wildlife 504 U.S. 555 (1992)…………………………………………………..……16
Monsanto Co. v. Geertson Seed Farms 561 U.S. 139 (2010)………………………………………………………..16
North Carolina v. Rice 404 U.S. 244 (1971) …………………………………………………....17, 35
Raines v. Byrd 521 U.S. 811 (1997)………………………………………………………..16
Steel Co. v. Citizens for a Better Env’t 523 U.S. 83, 94 (1998) ………………………………………………………3
Summers v. Earth Island Institute, 555 U.S. 488 (2009)………………………………………………………...16
ii

Preiser v. Newkirk, 422 U.S. 395 (1975)……………………………………………………17, 18
U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993)………………………………………………….…….17
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)………………………………………………………..21
UNITED STATES COURT OF APPEALS
Butts v. City of New York Dep’t of Hous. Pres. & Dev’t, 990 F.2d 1397 (2d Cir. 1993)…………………………………..………24-27
Carter v. New Venture Gear, Inc., 310 F. App’x 454 (2d Cir. 2009)………………………………………….26
Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111 (2d Cir. 1991)…………………………………………...…..19
Cerbone v. Int’l Ladies' Garment Workers’ Union, 768 F.2d 45 (2d Cir. 1985)…………………………………………….…..22
Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135 (2d Cir. 2012)…………………………………………...20, 22
Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003)……………………………………………26-27
Fitzgerald v. Henderson, 251 F.3d 345 (2d Cir. 2001)…………………………………….……...25-26
Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632 (9th Cir. 2002)…………………………………………….....26
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)…………………………………………...23, 27
iii

Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951 (2d. Cir. 2010)……………………………..…………………….3, 18
James v. Home Constr. Co. of Mobile, 621 F.2d 727 (5th Cir. 1980)……………………………….………………32
Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006), cert. denied, 549 U.S. 1282 (2007)…..………...3
Kilgo v. Bowman Transp., Inc., 789 F.2d 859 (11th Cir. 1986)…………………………………….………..32
Manway Constr. Co. v. Housing Auth. of the City of Hartford, 711 F.2d 501 (2d Cir. 1983)…………………………………………………3
Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d 97 (2d Cir. 2001)…………………………………………..…….19
Pridegon v. Gates Credit Union, 683 F.2d 182 (7th Cir. 1982)……………………………………………….30
S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427 (2d Cir. 1994)…………….…………………………………….2
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ..................................................... 6, 15-18, 29, 35
Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357 (10th Cir. 1991)……………………………………………...32
Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir. 1980)…………….…………………………………30
Williams v. N.Y. City Hous. Auth., 458 F.3d 67 (2d Cir. 2006)………………………………………….21, 24-27
iv

UNITED STATES DISTRICT COURT
Acebal v. United States 60 Fed. Cl. 551, 555 (Fed. Cl. 2004) ………………………………………30
Asklar v. Honeywell, Inc., 95 F.R.D. 419 (D. Conn. 1982)…………………………………………….30
Bligh–Glover v. Rizzo, 2012 WL 4506029 (N.D. Ohio 2012)……………………………………...32
Estate of Trivanovich v. Gulfport–Biloxi Regional Airport Auth., 2008 WL 2779441 (S.D. Miss. 2008)………………………........................33
Estwick v. U.S.Air Shuttle, 950 F. Supp. 493 (E.D.N.Y. 1996)……………………………………..30, 33
Grimes-Jenkins v. Consol. Edison Co. of N.Y., Inc., 2017 WL 2258374 (S.D.N.Y. May 22, 2017)…………………………20, 22
Grimes-Jenkins v. Consol. Edison Co. of N.Y., Inc., 2017 WL 2709747 (S.D.N.Y. June 22, 2017)…………………………20, 21
Khan v. Grotnes Metalforming Systems, Inc., 679 F. Supp. 751 (N.D. Ill. 1988)…………………………………...……..30
Polsby v. St. Martin’s Press, 2000 WL 98057 (S.D.N.Y. 2000)…………………………………………..19
Pueschel v. Veneman, 185 F. Supp.2d 566 (D. Md. 2002)………………..…………….……..33-34
Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011)…………………………………….22
v

Weeg ex rel. Weeg v. Ortiz and Associates, Inc., 556 F. Supp.2d 1188 (D. Or. 2008)……………………………………... 33
Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837 (S.D. Miss. 2012)…………………….…………32-34
STATUTES & REGULATIONS Title VII of the Civil Rights Act
42 U.S.C. § 2000e, et seq. (“Title VII”) ................................................passim New York State Human Rights Law
NY EXEC. LAW §296, et seq. (“NYSHRL”)……………………….passim ADMINISTRATIVE DECISIONS Baldwin v. Foxx,
EEOC 0120133080, 2015 WL 4397641 (July 16, 2015).........................5, 29 Estate of Donnie Powell, Complainant,
EEOC DOC 01991835, 2001 WL 135460 (Feb. 6, 2001)…………….........31 Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency,
E.E.O.C. DOC 657792 (Nov. 6, 1996)…….…………………………31, 34 Margaret Hanley v. Department of Veterans Affairs,
EEOC Appeal No. 01890296 (April 11, 1989)…………………………..31
vi

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
x----------------------------------------------------------------x MELISSA ZARDA & WILLIAM MOORE, EXECUTORS,
ESTATE OF DONALD ZARDA Plaintiff-Appellant, -against-
ALTITUDE EXPRESS & RAYMOND MAYNARD, Defendants-Appellees
x----------------------------------------------------------------x ISSUE PRESENTED
This en banc panel has been convened to address a single question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of… sex’?”
The facts of this case are inexorably linked with the legal question presented – facts which establish that, despite this laudable attempt to remedy a long-standing denial of protection to a now recognized and comparatively vulnerable class of its citizens, the Court’s inevitable answer in the affirmative results in a decision from which no relief flows. Any
1

answer in the affirmative to the question presented would be a prohibited advisory opinion.
JURISDICTION Appellants, Melissa Zarda and William Allen Moore, Jr. as CoIndependent Executors of the Estate of Donald Zarda, (“Appellants”),on behalf of Donald Zarda, who is deceased (“Zarda”, or “Appellant”), have been granted en banc review of the decision rendered by the United States Court of Appeals for the Second Circuit, August Term, 2016, decided on April 18, 2017. Altitude Express d/b/a Skydive Long Island and Raymond Maynard (“Appellees”, “SDLI” or “Maynard”) do not contest or otherwise dispute the jurisdiction of the underlying District Court, or the Court of Appeals. Appellees do challenge the jurisdiction of this en banc panel to determine a legal question upon which no relief can be granted. Such a challenge to subject matter jurisdiction must be considered by this panel, despite the narrow legal question posed. S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 430–31 (2d Cir. 1994) (“It is axiomatic that ‘in our federal system of limited jurisdiction any party or the court suasponte, at any stage of the proceedings, may raise the question of
2

whether the court has subject matter jurisdiction’; finding that argument regarding jurisdiction raised for first time on appeal was permissible) (citing Manway Constr. Co. v. Housing Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir.1983)). As this Court discussed within the last decade:
“[The Court] ha[s] an independent obligation to consider the presence or absence of subject matter jurisdiction suasponte.” Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir.2006), cert. denied, 549 U.S. 1282 (2007). Our inquiry to ascertain whether we have subject matter jurisdiction ordinarily precedes our analysis of the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 955 (2d. Cir. 2010) (emphasis added). Here, this panel must examine whether its findings as to the legal question posed will result in any actualized relief, or whether rendering a decision constitutes an impermissible advisory opinion. We respectfully submit this panel can reach no conclusion other than: 1) an opinion rendered in this case would be advisory in nature; 2) this panel lacks the constitutional authority to issue such an advisory opinion; and, 3) as such, this appeal must be dismissed, by law, for lack of standing and jurisdiction.
3

PROCEDURAL HISTORY On August 6, 2010, Zarda filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) (SA 001). Zarda’s EEOC charge states, in relevant part, that “my claim is because I did not conform my appearance and behavior to sex stereotypes, I suffered adverse employment action, and was discriminated against, at least in part, because of my sex.” Within that same paragraph, Zarda stated “I am not making this charge on the grounds of my sexual orientation.”(SA 003) (emphasis added). On September 23, 2010, Zarda filed a Complaint, Index #: 10-cv-4334, in the United States Court of the Eastern District of New York. Zarda’s original Complaint alleged four (4) separate violations of law: 1) a violation of Title VII, alleging discrimination based on failure to conform to sex stereotypes; 2) a violation of the New York State Human Rights Law, alleging sexual orientation discrimination; 3) a violation of the Fair Labor Standards Act; and 4) a violation of the New York Labor Law. (SA 009) Zarda filed an Amended Complaint on March 11, 2011. The Amended Complaint added two (2) additional causes of action: 1) gender
4

discrimination under the New York State Human Rights Law; and, 2) an additional violation under the New York Labor Law. (JA065)
Between February and May of 2013, Zarda and Appellants submitted various competing Motions for Summary Judgment (both partial and full). On March 28, 2014, Judge Bianco granted Defendants-Appellees’ motion as to Zarda’s claims of gender stereotype discrimination, hostile work environment, and failure to pay overtime. (SA 007)
On March 28, 2014, Appellant filed his Second Amended Complaint. He again claimed the following violations: 1) sex stereotype discrimination under Title VII; 2) sexual orientation discrimination under the NYSHRL; 3) gender discrimination under the NYSHRL; and, 4) failure to pay minimum wage under the NYLL. (SA 021) Conspicuously absent from the EEOC charge and each filed pleading is an allegation of sexual orientation discrimination under Title VII.
On August 17, 2015, Zarda filed a motion seeking reconsideration of the dismissal of his Title VII claim. Zarda based that motion to reconsider upon the EEOC’s decision in Baldwin v. Foxx, Appeal No.: 0120133080, in which the agency found that sexual orientation discrimination is sex discrimination. Tellingly, Zarda began his memorandum of support with
5

the following: “You can be the first judge to hold that Title VII protects sexual orientation discrimination.” However, the Title VII claim that the Judge had previously dismissed was a sexual stereotype claim, not a sexual orientation discrimination claim. (JA 716) Not only did Zarda, in an EEOC charge, a Complaint, an Amended Complaint, and a Second Amended Complaint, fail to allege sexual orientation discrimination under Title VII, he went so far as to expressly disavow such a claim within his EEOC charge. On October 13, 2015, the District Court Judge denied Plaintiff’s motion to reconsider based upon the law as it stood under Simonton, without addressing the issue that Plaintiff was attempting to revive a claim that was never plead or charged to the EEOC.(JA 716)
Zarda subsequently appealed on, among other grounds, the basis that Simonton and its progeny should be overruled, or, alternatively, be held inconsistent with the current state of the law. The Court declined to revisit Simonton and, in the course of doing so, determined an en banc review would be necessary to overturn prior Circuit precedent.1 (JA 718) Zarda then filed a petition for en banc review, which was granted.
1 The Court found no merit as to the other grounds raised on appeal. (JA 718)
6

STATEMENT OF FACT This case, at the time of its original filing, was a straightforward dispute involving discrimination claims arising in the workplace. The central issue at hand was, and remains, whether the Appellant, Donald Zarda, was in fact subject to impermissible discrimination, and whether the basis for the alleged discrimination is protected under Title VII of the Civil Rights Act. The operative facts forming the basis of Zarda’s allegations have already been tried before a jury of his peers within the context of the New York State Human Rights Law, NY EXEC. LAW §296, et seq. (“NYSHRL”). Upon the completion of a fair and proper trial, Zarda’s claims were ultimately determined to be unfounded. Here, should this Court determine that existing precedent regarding sexual orientation discrimination under Title VII has outlived both the logic and reason from which it was derived, Appellants’ arguments must still be rejected by the Court for the following reasons:
7

1) Zarda presented his allegations of discrimination to a jury of his peers under the corresponding state statute, resulting in no finding against Defendants-Appellees;
2) Zarda expressly disavowed a claim of sexual orientation discrimination under Title VII in his EEOC Charge, and never raised such a claim in his Complaint, his Amended Complaint, or his Second Amended Complaint - ipso facto, regardless of this panel’s holding, Zarda is precluded from pursuing such a claim; and,
3) Zarda’s estate lacks legal standing to raise a new Title VII allegation that was never raised by Zarda prior to his death.
Zarda began this litigation by alleging, in his Amended Complaint,
violations of New York State Human Rights Law, Title VII and New York
State Labor Law. (JA 0025 – JA 0040) Among those causes of action, Zarda
claimed he was discharged because of a homophobic customer. (JA 0025)
Specifically, Zarda claimed that he had said to a customer that “You don’t
have to worry about us being so close because I’m gay.” (JA 0029) Zarda
alleged that he was terminated for “mentioning the fact that he was gay to
a passenger” and that he had touched a passenger inappropriately. (JA
0031 – JA 0032) However, at the time the Amended Complaint was filed,
Zarda was unaware of the existence of a customer complaint. (JA 0033)
Zarda alleged in his Amended Complaint that he was fired from his
8

position because his “behavior did not conform to sex stereotypes.” (JA 0035)
At summary judgment, Zarda’s “gender stereotype discrimination, hostile work environment, and overtime claims” were each summarily dismissed. Zarda’s “sexual orientation discrimination claim” based upon his termination under New York State law, and minimum wage claim under New York State law were permitted to go to trial. (JA 0672) Zarda then moved for reconsideration of the dismissal of his gender stereotype discrimination and hostile work environment claims. (JA 0021) By decision dated October 13, 2015, the District Court terminated Zarda’s application for reconsideration of the Summary Judgment Decision. (JA 716)
Zarda testified at trial by and through his deposition testimony which was read into evidence. Zarda filed an EEOC charge indicating that “I’m not making this charge based on my sexual orientation.” (SA 003) With regard to his suspension and ultimate termination, Zarda testified that he was asked “a lot of questions” about the tandem “jump with Miss Rosanna” and that he did not remember a specific jump at that time to which he was referring. (JA 1164 - 1165, JA 1330, JA 1331) Zarda acknowledged that Maynard, the owner of Skydive Long Island, was
9

“investigating what I knew about” the complaint. (JA 1166) Zarda acknowledged that his colleagues referred to him as “Gay Don” and that he “wasn’t offended by that.” Further, he testified that, with regards to the workplace, he was treated “like anybody else.” (JA 1167) Zarda testified that his outward appearance lead people to believe that he was heterosexual and that he was frequently mistaken for being straight and that such a mistake did not offend him. (JA 1276 - JA 1277)
Zarda opined about his 2001 termination from SkyDive Long Island, “From the best I can recall, because Ray didn’t discuss it with me, it had something to do with a customer being unhappy about not being able to do flips out of the airplane, or something that they wanted me to do out of the aircraft.” (JA 1169, JA 1310, JA 1325) Zarda testified that he was rehired in 2009, and that Appellees rehired him with full knowledge of his sexuality and that he had a positive working relationship with his colleagues. (JA 1177) Zarda conceded he got along well with all of his colleagues in 2009. (JA 1174) Zarda enjoyed working at Skydive Long Island until he broke his ankle in 2009, at which point, he stopped working on July 2, 2009. (JA 1175)
In 2010, Zarda confirmed he did not have any negative interactions with any of his coworkers and none of his co-workers brought up his
10

sexuality with the intent to hurt his feelings, or to be malicious. (JA 1178, JA 1315) Zarda testified that Ray Maynard was taking things out on him because his Workers’ Compensation insurance went up drastically as a result of his claim for injury (JA 1312) and that being upset about the Workers’ Compensation premium increasing and the complaints about were a possible basis for his termination. (JA 1313, JA 1314, JA 1316, JA 1325) That said, Zarda conceded he did not know what Maynard’s motivation was for terminating him in 2010. (JA 1299)
Rosanna Orellana, the female tandem jump student who complained about Zarda’s behavior, was called by Appellants to testify. She testified on direct examination that Zarda made a joke about her being strapped to another guy. “He made the joke. He said to my boyfriend, how do you feel that I’m strapped to your girlfriend or something along lines.” (JA 1222) Ms. Orellana testified that Zarda whispered in her ear in a sensual manner. (JA 1232) On cross-examination, Orellana testified that the video introduced did not capture the entirety of the jump experience. (JA 1245) She testified that Zarda made her feel uncomfortable by, “whispering in my ear, so close in a sensual way. And after that he kept, you know putting his chin on my shoulder, which I found to be like, inappropriate.” She
11

compared what she experienced to what she observed of her boyfriend’s jump and testified that it made her “feel uncomfortable.” (JA 1247) She also testified that Zarda put his hands on her legs and no other instructors behaved in such a manner. (JA 1247 - JA 1248) Orellana testified that Zarda made her feel uncomfortable and that his behavior was inappropriate. (JA 1249) Orellana testified that instead of discussing the geography of what they were hovering over under the parachute that Zarda “was talking about his personal life. I can’t remember the whole conversation, but something about a break up with his, you know, significant other and how upset he was because they had broken up. That’s - - that was the main conversation during that period of time.” (JA 1253)
After the jump, Orellana discussed what transpired with her boyfriend. He also jumped on the day in question and they compared their respective experiences. At this point, Orellana expressed disappointment in her jump experience. (JA 1255 – JA 1256) On re-direct, Orellana testified that she expected Zarda “to do his job and talk about what he is supposed to talk about, which is the surrounding area.” I’m not really, you know, a therapist, so if he wanted to talk about his personal life and his personal
12

problems in his life, he should find a more appropriate time to talk about it, not while we are free falling with my life in his hands.” (JA 1262 – JA 1263)
David Kengle testified on direct examination that he complained to Maynard about Zarda’s behavior with his girlfriend, Orellana. (JA 1405 – JA 1406, JA 1410) Kengle testified, “I don’t remember exactly the conversation that we had. I made a complaint based on what I felt was inappropriate and the story that my girlfriend Rosanna gave me at the time. Exactly what I told him, I don’t remember the details, but he did refer to his personal life, referenced his personal life in some capacity. I felt that added inappropriateness, and that was my complaint.” (JA 1407) Kengle went on to explain that he complained about Zarda acting inappropriately in that he was flirtatious with Orellana, kept his hands on her hips, or thigh area throughout the jump, and was gesturing to his mouth. (JA 1410 – JA 1412)
On direct examination by Appellants’ counsel, Maynard testified that Zarda made him aware of his sexual orientation at the time of his original hiring in 2001. (JA 1466). Maynard acknowledged that he received a complaint about Zarda from Kengle. (JA 1476) The complaint included that Orellana experienced touching that made her feel uncomfortable. (JA 1478)
13

Further, the complaint detailed inappropriate discussions between Zarda and Orellana that occurred during the fall from the plane. (JA 1482, JA 1543) Maynard testified that after he received the complaint, he started his investigation. (JA 1544) As part of his investigation, Maynard asked Zarda questions about the jump which he could not recall. He also testified that Zarda had a history of customer complaints and was spoken to twice before about these issues. (JA 1482) After Maynard viewed the videotape of the jump, its content corroborated the facts forming the basis of Kengle’s complaint. (JA 1482, JA 1545)
Wayne Burrell testified that he was employed at Skydive Long Island for twenty-four (24) years as an instructor, and that he had worked with Zarda. (JA 1514) Burrell testified that he observed Zarda “being a little unprofessional, rude not talking to them, not being friendly” with female jumpers and that he had mentioned his observations to Maynard. (JA 1515 - 1516)
Duncan Shaw testified that he worked at Skydive Long Island for fifteen (15) years, and that he worked with Zarda. (JA 1575 - 1576) He testified that Zarda introduced himself to others as, “Gay Don” and frequently discussed his sexual orientation in front of co-workers and, at
14

times, went into detail about his relationships. (JA 1577, JA 1578 – JA 1580, JA 1586)
Curt Kellinger testified that he had worked at Skydive Long Island since 1992, up until a couple of years before his 2015 testimony. (JA 1626) Kellinger knew Zarda and was instrumental in his hire at Skydive. (JA 1627 – JA 1628) Kellinger testified that Zarda disclosed his sexual orientation to him at their first meeting. (JA 1628, JA 1629)
The trial resulted in a verdict for the Defense, with the jury finding that Zarda’s sexual orientation was not the but-for cause of his termination.
ARGUMENT 1. TITLE VII DOES NOT EXTEND TO SEXUAL ORIENTATION. The question of whether Title VII encompasses sexual orientation discrimination was previously addressed, at-length, on appeal. For sake of brevity, Appellees respectfully direct this panel to our arguments raised before the Second Circuit, all of which are attached hereto as SA 049. For all the reasons included therein, based upon the well-reasoned decision – in the face of facts far more compelling than any alleged here – issued in Simonton, we respectfully submit that this panel should find, as all of its sister courts (except the Seventh Circuit) have, that Title VII does not
15

ecompass sexual orientation discrimination. Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).
2. THIS PANEL LACKS AUTHORITY TO RENDER AN ADVISORY OPINION. “No principle is more fundamental to the judiciary's proper role in
our system of government than the constitutional limitation of federalcourt jurisdiction to actual cases or controversies.”Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492–493 (2009)). To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper, at 409 (emphasis added) (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010); Summers, at 493; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
As stated by the Supreme Court in Chafin: Article III of the Constitution restricts the power of federal courts to “Cases” and “Controversies.” Accordingly, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the
16

defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp.,494 U.S. 472, 477 (1990). Federal courts may not “decide questions that cannot affect the rights of litigants in the case before them” or give “opinion[s] advising what the law would be upon a hypothetical state of facts.” Ibid. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam); internal quotation marks omitted). The “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis, 494 U.S., at 477 (emphasis added).
Chafin v. Chafin, 568 U.S. 165, 171–72 (2013).
Here, should the Court answer the question presented in the
affirmative, no relief flows to Zarda. An affirmative answer does not
revive any allegation contained within the pleadings, entitle Zarda to a
new trial, or provide any actionable relief beyond advising that Simonton is
no longer good law.
i. ADVISORY OPINIONS ARE IMPERMISSIBLE It is well-settled that “a federal court has neither the power to
render advisory opinions nor ‘to decide questions that cannot affect the
rights of litigants in the case before them.’” Preiser v. Newkirk, 422 U.S.
395, 401 (1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241
(1937)); see also U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508
17

U.S. 439, 446, (1993) (“federal court [lacks] the power to render advisory opinions”) (emphasis added).
A decision of the issue presented before this en banc panel has no effect on “the rights of litigants in the case before them.” See Prieser, at 401. Should this panel reach the appropriate conclusion that no relief flows from their finding of the question of law presented, then this panel must dismiss the appeal for lack of subject matter jurisdiction ipso jure.See Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 957 (2d Cir. 2010) (holding that there was “no basis upon which [the Court] can exercise jurisdiction” where any decision rendered would be advisory). While Simonton is undeniably outmoded, this panel cannot reach the merits of the appeal where no underlying jurisdiction exists.
ii. NO RELIEF FLOWS FROM THE COURT’S ANTICIPATED AFFIRMATIVE ANSWER
As stated above, should this panel ultimately rule in the affirmative, Zarda is still not entitled to any relief. Zarda’s sexual discrimination claim arising under state law was previously defeated on the merits before a jury, and his purported Title VII sexual orientation discrimination claim was notplead at any time within the seven (7) years this case has been active
18

and pending: it was not charged within his EEOC filing (indeed, Zarda denied bringing a claim that he was discriminated on the grounds of his sexual orientation), nor plead in his Complaint, Amended Complaint, or Second Amended Complaint. (JA 065; SA 009; SA 021).
The first time a potential putative sexual orientation discrimination claim arising under Title VII materialized was in Zarda’s motion for reconsideration of the District Court’s dismissal of his gender stereotype discrimination claim. (JA 708; SA 035) It is a fundamental tenet of Federal Practice that motions for reconsideration are not the place for newly raised facts, issues, or arguments - let alone wholly new claims which are not alleged in any pleadings, and expressly disavowed in an EEOC charge. See generally Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d 97, 115 (2d Cir. 2001) (citing Caribbean Trading & Fidelity Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991) (holding that predecessor to Rule 6.3 “preclud[es] arguments raised for the first time on a motion for reconsideration”), cert. denied, 504 U.S. 910, (1992); Polsby v. St. Martin’s Press, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (“On such a [Local Rule 6.3] motion, a party may not advance new facts, issues, or
19

arguments not previously presented to the Court.” (internal quotation marks omitted)).
Even assuming, arguendo, that a claim plead for the first time in a motion to reconsider could be properly considered by the District Court, Zarda’s purported Title VII sexual orientation claim still fails to satisfy prerequisites necessary to advance such a claim in Federal Court. Infra, at 20. Consequently, we maintain that this panel is precluded from allowing Plaintiff-Appellant to bring forth an uncharged and unpled claim some seven (7) years after he expressly disclaimed its existence under penalty of perjury.
a. FILING AN EEOC CHARGE IS A MANDATORY PREREQUISITE TO PURSUING RELIEF UNDER TITLE VII.
It is well-settled that filing a timely EEOC charge is a precondition to filing a Title VII action before a District Court. Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135, 146 (2d Cir. 2012) (“As a prerequisite to filing suit under Title VII, a private plaintiff must first file a timely charge with the EEOC.”) (citing 42 U.S.C. § 2000e–5(e)(1), (f)(1)); Grimes-Jenkins v. Consol. Edison Co. of N.Y., Inc., 2017 WL 2258374, at *4 (S.D.N.Y. May 22, 2017), report and recommendation adopted sub nom. SHERRY GRIMES-
20

JENKINS, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant., 2017 WL 2709747 (S.D.N.Y. June 22, 2017); see also Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Exhaustion is ordinarily “an essential element” of a Title VII claim).
While filing an EEOC charge is a prerequisite to filing a claim in Federal Court, the Courts treat the requirement similarly to a statute of limitations; subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”)
However, since a Title VII sexual orientation discrimination claim was never brought by Zarda in the lower court proceedings, the doctrines of waiver, estoppel, and equitable tolling simply cannot apply here. Defendants-Appellees cannot be deemed to have waived their rights or be estopped from asserting a valid defense in response to a claim that, until an inappropriately argued motion for reconsideration, was never raised or plead.
21

The time in which Zarda can properly file a new or amended EEOC charge related to sexual orientation discrimination cannot be deemed equitably tolled.“The doctrine of equitable tolling rests on the assumption that a statute of limitations will not run against a plaintiff unaware of her cause of action.” Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011) (denying equitable tolling and finding Plaintiff’s Title VII claim time-barred for failure to file timely EEOC charge) (citing Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2d Cir.1985) (internal citations omitted)). Here, Zarda was fully aware of his potential cause of action and expressly denied the existence of a sexual orientation discrimination claim.
As waiver, estoppel, and equitable tolling do not apply under the current circumstances, Zarda is barred from advancing a sexual orientation claim under Title VII where he has failed to file an EEOC charge alleging same. Chin, at 146; Grimes-Jenkins, at *4. Should this Court find that Simonton must be overturned, and Title VII prohibits sexual orientation discrimination, Zarda still lacks standing to bring his claim in the District Court.
22

Zarda’s failure to properly plead a claim distinguishes the instant case from the facts of Hively – the very case upon which Zarda principally relies to support his contentions on appeal. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). In Hively, an important event transpired, wholly distinct from the facts of this case - the Plaintiff properly raised her sexual orientation discrimination claim in her EEOC Charge:
Believing that Ivy Tech was spurning her because of her sexual orientation, she filed a pro se charge with the Equal Employment Opportunity Commission on December 13, 2013. It was short and to the point:
I have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am being blocked from fulltime employment without just cause. I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated. Hively, at 341 (emphasis added). The Hively Plaintiff then received a notice of right to sue, filed her complaint in Federal Court, and was subject to a 12(b)(6) motion for dismissal, which was granted. Hively, at 345. Plaintiff then appealed her preserved issue of law upon which relief could be properly granted.
23

By way of contrast, in the instant case, Zarda expressly disavowed a claim of sexual orientation discrimination in his EEOC charge. (SA 003). Following receipt of his notice of right to sue from the EEOC, Zarda filed his complaint in Federal Court, which contained no allegation that he was in any way discriminated against because of his sexual orientation in violation of Title VII. (SA 009). Zarda failed to allege sexual orientation discrimination under Title VII in his Amended Complaint or Second Amended Complaint as well. (JA 065; SA 021). These facts are fatal to Zarda’s stated position.
b. WHERE THERE EXISTS AN EXPRESS DENIAL OF A CLAIM WITHIN AN EEOC CHARGE, SUCH A CLAIM CANNOT BE REASONABLY RELATED TO THE CHARGE
When a claim is not raised within the four corners of an EEOC complaint, they may still be brought in in a Second Circuit Court if they are “reasonably related” to the claim filed with the agency. Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (“Claims not raised in an EEOC complaint, however, may be brought in federal court if they are “reasonably related” to the claim filed with the agency”) (citing Butts v. City of New York Dep’t of Hous. Pres. & Dev’t, 990 F.2d 1397, 1402 (2d Cir.1993),
24

superceded by statute on other grounds, Civ. Rights Act of 1991, Pub. L. No.

102-166, 105 Stat. 1071). Zarda does not qualify for this exception to the

rule requiring administrative exhaustion.

Three scenarios exist in which the Second Circuit has recognized

uncharged claims to be “reasonably related”:

a) “if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made”;

b) a claim “alleging retaliation by an employer against an employee for filing an EEOC charge”; and,

c) a claim where the plaintiff “alleges further incidents of

discrimination carried out in precisely the same manner

alleged

in

the

EEOC

charge.”

Williams, at 70 (2d Cir. 2006) (citing Fitzgerald v. Henderson, 251 F.3d 345,

359–60 (2d Cir.2001) (internal quotation marks omitted); Williams, at FN 1

(citing Butts, at 1402-3). Since Zarda does not allege retaliation or further

incidents of discrimination, “b)” and “c)” above cannot apply. Turning the

panel’s attention to Zarda’s sole remaining ground to allege that an

uncharged Title VII claim was “reasonably related” to his filed EEOC

complaint, “a)” listed above, current case law dictates that Zarda’s sexual

orientation claim cannot fall within this exception.

25

In determining “if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made,” “[t]he central question is whether the complaint filed with the EEOC gave that agency ‘adequate notice to investigate discrimination on both bases.’” Williams, at 70 (citing Fitzgerald, at 359-60; Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002))) (emphasis added); see also Carter v. New Venture Gear, Inc., 310 F. App'x 454, 458 (2d Cir. 2009) (EEOC charge not “sufficiently related” as “[t]he EEOC was [] not “on notice” of [Plaintiff]'s gender-based complaints).
Importantly, The “reasonably related” exception to the exhaustion requirement “ ‘is essentially an allowance of loose pleading’ and is based on the recognition that ‘EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering.’ Williams, at 70 (2d Cir. 2006) (citing Butts, at 1402). This concern for those acting without the aid of an attorney is inapplicable here. Zarda’s
26

EEOC charge was prepared with the aid of his attorney, Gregory Antollino, who notarized the document. (SA 006).
Zarda’s EEOC charge failed to give the agency “adequate notice to investigate discrimination on both bases.” Williams, at 70; Deravin, at 201. Zarda expressly stated that “I am not making this charge on the grounds I was discriminated against on the grounds of my sexual orientation.” (SA 003) (emphasis in original); compare with Hively, at 341 (“I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated”). Indeed, and perhaps not surprisingly, a review of Second Circuit precedent yields no reported instance of a Plaintiff expressly denying a claim within their EEOC charge and subsequently attempting to plead the very same claim.
The “primary purpose [of EEOC charge] is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (citing Butts, at 1402. Here, and in contrast to Hively, Zarda expressly disclaimed a charge of sexual orientation
27

discrimination in his EEOC charge. It would both defy logic and reason to accept such a denial as placing the EEOC on notice.
We respectfully maintain this panel should be hesitant about setting binding Circuit precedent that Plaintiffs are permitted to expressly deny a claim exists in the content of an EEOC charge, only to reverse course and later allege the same. Such a holding would be incongruous with the legislative mandate of the EEOC and the statutory requirements of Title VII.
c. AN AFFIRMATIVE ANSWER OVERTURNS A DECISION BY THE LOWER COURT WITHOUT CONSEQUENCE
In the unlikely event this panel deems a sexual orientation discrimination claim to be reasonably related to Zarda’s EEOC charge despite the express denial discussed supra - the fact remains that Zarda’s Complaint, Amended Complaint, and Second Amended Complaint are each devoid of any allegation Zarda was discriminated against based upon his sexual orientation in violation of Title VII. (JA 065; SA 009; SA 021) The first time any allegation of sexual orientation discrimination under Title VII surfaced was within Zarda’s motion to reconsider. (JA 708)
28

Again, Zarda based that motion to reconsider upon the EEOC’s decision in Baldwin v. Foxx, Appeal No.: 0120133080, in which the agency found that sexual orientation discrimination is sex discrimination. Tellingly, Zarda began his memorandum of law in support with the following: “You can be the first judge to hold that Title VII protects sexual orientation discrimination.” However, the Title VII claim that the Judge had previously dismissed was a sexual stereotype claim, not a sexual orientation discrimination claim. (JA 699) On October 13, 2015, the District Court Judge denied Plaintiff’s motion to reconsider relying upon the law as it stood under Simonton, without addressing the issue that Plaintiff was attempting to revive a claim that was never plead. (JA 716) Should this panel find in the affirmative on the legal question presented, overturning the District Court’s denial of Zarda’s motion to reconsider, Zarda is still precluded from raising a claim never charged before the EEOC, never plead within any of his three (3) Complaints, and only raised (improperly) within the aforementioned motion.
29

iii. THE ESTATE LACKS STANDING TO INITIATE A TITLE VII ACTION ON BEHALF OF ZARDA
Absent some specific direction by Congress, whether an action created by federal statutory law survives the death of the plaintiff is a matter of federal common law. Estwick v. U.S.Air Shuttle, 950 F. Supp. 493, 498 (E.D.N.Y. 1996) (citing Asklar v. Honeywell, Inc., 95 F.R.D. 419 (D.Conn.1982); see also Khan v. Grotnes Metalforming Systems, Inc., 679 F.Supp. 751 (N.D.Ill.1988); Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir.1980), rev’d on other grounds sub nom. Pridegon v. Gates Credit Union, 683 F.2d 182 (7th Cir.1982); see also Acebal v. United States, 60 Fed. Cl. 551, 555 (Fed. Cl. 2004) (“In the absence of a specific statutory provision, courts have looked to federal common law to determine whether an action created by federal statute survives the death of a party”).
Federal common law has long recognized that actions which are penal in nature do not survive the death of a party.Id. Title VII has been held to be remedial in nature, and therefore an action can survive the death of the Plaintiff. Id. (citing Asklar, at 423; Khan, at 755).
So, a Title VII claim where the Plaintiff later dies during the proceedings may survive. The next logical question is: where, as
30

applicable here, a Plaintiff has not charged a Title VII claim before the EEOC prior to his death2, does federal common law allow his Estate to pursue such a claim?
The answer is “no.” Federal common law contains no such provision allowing an estate to initiate a Title VII claim. The EEOC has held that an Estate is entitled to maintain a previously filed charge, but not initiate one on behalf of the deceased. Estate of Donnie Powell, Complainant, EEOC DOC 01991835, 2001 WL 135460, at *1 (Feb. 6, 2001) (“complainant's spouse, as complainant's personal representative, does not have standing to initiate the EEO process on behalf of her deceased husband.”); Estate of Yao Hu, Appellant, EEOC DOC 01961473, 1996 WL 657792, at *1 (Nov. 6, 1996) (“While… federal employee's EEO complaint survives the death of the complainant in certain instances, the complaint in this case was not initiated by the employee but by his estate”) (comparing Margaret Hanley v. Department of Veterans Affairs, EEOC Appeal No. 01890296 (April 11, 1989) ([Plaintiff] passed away after the filing of her complaint and the
2 As noted, supra, Zarda expressly disavowed any claim of sexual orientation discrimination in his EEOC Charge. Further, Zarda’s Complaint, Amended Complaint, and Second Amended Complaint are each devoid of a sexual orientation discrimination charge under Title VII. (JA 065; SA 003; SA 009; SA 021)
31

Commission allowed her daughter and other heirs to continue to pursue the complaint on her behalf).
While the issue itself only been sporadically presented, Federal Courts have found that when a Plaintiff passes away during the pendency of a previously filed claim, the Title VII action survives. A pendingTitle VII action may be maintained by a deceased claimant’s estate. Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 841 (S.D. Miss. 2012) (The numerous courts that have considered whether a Title VII cause of action survives the death of the employee have consistently held that a Title VII cause of action that has been commenced prior to the employee's death survives the employee's death; collecting cases) (emphasis added); Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir. 1991) (holding that pending Title VII claim survived the plaintiff's death and substituting the plaintiff's wife as plaintiff) (emphasis added); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir.1986) (holding that a pending action under Title VII survives under both federal common law and state law and that husband was properly substituted as plaintiff for his deceased wife) (emphasis added) (citing James v. Home Constr. Co. of Mobile, 621 F.2d 727, 729–30 (5th Cir.1980)); Bligh–Glover v. Rizzo, 2012 WL 4506029, *1 (N.D.Ohio
32

Sept.30, 2012) (finding that plaintiff’s pending Title VII cause of action survived his death) (emphasis added); Estate of Trivanovich v. Gulfport– Biloxi Regional Airport Auth., 2008 WL 2779441, *2 (S.D.Miss. July 14, 2008) (finding that pending Title VII claim survived under either state or federal law and noting that Estate was substituted as plaintiff) (emphasis added).
In accord with the EEOC findings supra, Federal Courts which have considered the issue have found that “a Title VII cause of action survives the employee's death and may be brought by the personal representative of the employee's estate where the employee died after initiatingan administrative complaint for discrimination.” Wright ex rel. Wright, at841 (emphasis added) (citing Weeg ex rel. Weeg v. Ortiz and Associates, Inc., 556 F.Supp.2d 1188 (D.Or.2008) (finding that court had jurisdiction over Title VII cause of action where employee died after filing EEOC charge but before suit and employee's estate completed exhaustion of administrative remedies begun by employee) (emphasis added); Estwick v. U.S. Air Shuttle, 950 F.Supp. 493, 498–99 (E.D.N.Y.1996) (finding that Title VII actions survived and wife had standing to file Title VII action after her husband died prior to EEOC's finding on husband's charge of discrimination) (emphasis added); Pueschel v. Veneman, 185 F.Supp.2d 566, 571–572
33

(D.Md.2002) (holding that Title VII claim pressed by personal representative of deceased former employee may be adjudicated if employee effectively exhausted her administrative remedies and neither party is unfairly prejudiced by employee's death) (emphasis added).
This brings us to the crux legal principle which applies here: no Federal Court, panel, judge, magistrate, administrative law judge, or agency has ever found an Estate may raise a new Title VII claim on behalf of a deceased Complainant which the deceased Complainant did not himself raise.See Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012)(“While a complaint initiated by a federal employee may survive her death, the estate of that employee has no right to file a complaint”) (quotingPueschel, at 571); (citing Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency, 1996 WL 657792 (E.E.O.C. Nov. 6, 1996) (holding that widow could not file discrimination claim on behalf of deceased husband where employee died before initiating complaint)).
Zarda did not raise a claim of sexual orientation discrimination under Title VII in his EEOC charge, his Complaint, his Amended Complaint, or his Second Amended Complaint. Should this panel find in the affirmative
34

on the lone question of law presented, Zarda’s estate can obtain no relief, because they may not raise a Title VII claim, for the first time, which Zarda himself did not allege.
CONCLUSION Zarda failed to allege a sexual orientation discrimination claim arising under Title VII in either his EEOC charge or any pleading before the District Court. No Judge issued a decision which in any way precluded Zarda from doing so. These facts distinguish the instant case from Hively and are fatal to Zarda’s appeal. Should this en banc panel find that Simonton and its progeny should be overturned, such a decision will not afford Zarda any relief. As the Supreme Court has repeatedly held in interpreting Article III of the Constitution, Federal courts may not “decide questions that cannot affect the rights of litigants in the case before them” or give “opinion[s] advising what the law would be upon a hypothetical state of facts.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244). Since this panel lacks jurisdiction sufficient to render a constitutionally valid decision, this panel must dismiss Zarda’s appeal.
35

Dated:

Bohemia, New York July 26, 2016

ZABELL & ASSOCIATES, P.C. Counsel for Appellees

~

Digitallys"1gned by Saul D.Zabell

By:~~~~~~~~~~ ~

Oate:2017.07.2612:25:ll-04'00'

Saul D. Zabell

One Corporate Drive, Suite 103

Bohemia, NY 11716

(631) 589-7242

(631) 563-7475

szabell@laborlawsny.com

36

CERTIFICATE OF COMPLAINCE PURSUANT TO FRAP 32(a)

Pursuant to Rule 32(a)(7)(B) of the Rules of Appellate Procedure (Second Circuit), the attached brief contains 7,133 words.

a
?Sl!"1""""'""
-J.obo,hW<O!'-

Digitally signed by Saul D. Zabell Date: 2017.07.26 12:28:31 ·04'00'

Saul D. Zabell (SZ 2738) Dated: July 26, 2017

15-3775

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Plaintiffs-Appellants
-againstALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD, Defendants-Appellees
En Banc Rehearing of the Panel Opinion Reported at 855 F. 3d. 76 (2d. Cir. 2017)

APPELLEES’ SUPPLEMENTAL APPENDIX

ZABELL & ASSOCIATES, P.C. Saul D. Zabell, Esq. Attorney for Defendants-Appellees 1 Corporate Dr., Suite 103 Bohemia, NY 11716 (631) 589-7242

Filed: July 26, 2017

TABLE OF CONTENTS PLAINTIFF’S EEOC CHARGE................................................................................ .SA 001 MARCH 28, 2014 ORDER........................................................................................... SA 007 PLAINTIFF’S SEPTEMBER 23, 2010 COMPLAINT ............................................. SA 009 PLAINTIFF’S MARCH 28, 2010 SECOND AMENDED COMPLAINT............... SA 021 PLAINTIFF’S AUGUST 7, 2015 MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR RECONSIDERATION OF THE DISMISSAL OF THE TITLE VII CLAIM ............................................ SA 035 APPELLEES’ JUNE 15, 2016 BRIEF, DOCKET No. 15-3775................................ SA 048
i

.• •. emc i:-oru~ f~t p1to!l)
r

U.S. Equal Employment Opportunity Commission
.F'E!RSON FllJNC! CHARGE
Donald Zarda

Director Of Human Resourua

ALTITUDE EXPRESS INC. DIB/A/ SKYDIVE! LONG ISL.AND

L 5l!5JanWay Calverton,NY11933

_J

THIS Pl:RSON (check MEI orboth)
[iJ Claims To Be Aggrieved
D lsFIUngon&lialfofOther(s) ..
EEOC CHARGE NO.
520-2010·02921

NOTICE OF CHARCE OF DISCRIMINATION·
(SU Iha <!tlclosed for af1tJlttonlll lnformelftm)

[!! 0 0 This Is notice that a chal'lle of employment dlscrimlnellon has been filed against your orgWJizallon undef:

TIU• VII of the Civil Righi!! Act (Tiiie VII) ·

The Equal F'ay NA (EPA)

The Americans wl1h Dlolibilltles Acl (ADA)

0 Tile Age DIBl:flmlnalion In E~ymenl Act (ADEA)

0 The Genallc lnfon11ation NondiscMmlr12fion A.et (GINAJ

i· j

0The boxes Cfreclced belOW •PJJ!ylo Clllr handling ofihls oharge:

1.

No action Is mqulred by you at lhls lime•.

z 0 Plane C811 lh9 EEOC Reprvaenl"1ff119 !lated below conceming Iha lllnher handling of lllla cliarge.

(!! 3.

Please pmvlde by 08-SEP-10 a slatemenl of your position on lhe illsuos covered by this charge, With copies of eny

supponing documentation lo tile EEOC Reprasentetlve llllled bolow. Your respons• will be ~laced In lhe me and conoldered as wa lnvesllgate

lh• charge. A prumpl re!lpOnse lo tllls "'quest will maka iieasier lo oonclude our invullgation.

04.

PJaase reopond fUJly by . ·

to Ille encla&ed raqueet for irilbimat!cn and send your reaponM lo tile EEOC

Representaliva n.ted below. Your 1'49ponse wlll ~ placed Jn lh• flle and Cllnsidorad as we i111JeStfaal<l lhe cherge. A prompt !'$$pons• lo lhis

~ltwlltmella fl·~"' lo conc:fr.Kle our lnVllSligation.

f':xl ·$,

EEOC nu • Mediation progmm lhat gives p•rllff an oppo11unlly fo resolve !he Issues of a charge without Ol!fonslve lnveefigatlon or .

expen<flb.lre or resaunios. Ifyou would Uke ID perticip•, please say so oo lhe enclosed Jorm and respond by

23-AUG·1 O

to Elizabeth Cadle, ADR Coordinator, a1; (212) 3311-3846 .

.

._

Jfyou~wish to.II)' Medial/an, you must mspond lo any requ9Sl{s) madeabova by the dlife(s) 1$flecified there_

For further Inquiry on thlB m;i\wr, plean use \he ohmge nunmer shown above. Your pasltlon 9talemant, your response to our MqU&s! for infomietton, or any Inquiry you may have should Ile directod to:

Ellzllbath Cadle, Enforc1111111~t Manager

Totoplmne (212) 3$6-3646

IZI Em;lo.Ure(s~

Copy of Chaige

Ne'W York District Office 33 Whitehall Streat !ltll Roor New York, NY 10004

o - D D 0 0 D 0 0 0 CIRCUMSTANCES OF AL!J;;GCD DISCRIMINATION

COIOf ~ Sox

Religion

Notitmal Ollgln

Age

Dloabllity

'111all1111on Gonolio lnl'ennallon

Olhor

See enclosad copy of charge"of discrimination. Pleue provide two (2) copies of your response to the inva&tigator mentioned above. Thank you.

Auguat 6, 201 D

Name / lltla of Aulhorl!:ad Ol!lclal
Spencer H. Lewis, Jr,,
Director

SA001

n---.. -·'

JUL 1 4 2010
•

OHARI.!~ OF DISCRIMINATION Tflla ~ l<l l!flnlll11d by lhn Prl~M( OJ1W<I, eea Pllwicr Acl Slflttltl~n11;1ri rmtR1.111t balar11 ~plallni:i lh!nll!ilm,

l8f FEPA

CHAFIGE. NUMBi!A

1--~~~~.....-~~~~~~~~~~~~~""-=E=~o~c'---'---~----"-=-~~:+1~/

51> \-1 fl.-

llnd F.EOC

~SIM or L~lll JIM/iql, /!An~)

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, ~MPL0VMEl"1' AGl!NCV, APPRENTICESHIP COMMITTEE. STATE OR LOCl\L' GOVERNMENT AGENCY WHO IJISCRllAINATED AGAINST ME (II moro rhon ona llsl bolow),

NO. Of' !MPLOVEESIMEMB'f.R5
~15+

TlLE~ONE NUMEl!lR {irmlude A1'96' CMta)
G3 l-208- 3'ioo

CAUSE OF DISORIMlr.vt'tlON WED ON I

D RACE

D c01cR

D D SEX

Rrna10N

""'110NA' Ql'l1a1•

0 RETALIATION 0 AGii 0 CISASILITY CJ OTHER (Splli:lfy)

DAT! Cllljt~IMINATION TOOK PLACE

.......

(f/';E-)o

CQNTINUINQ ACTION

GREGORY S. ANTOLUNO Nu1m1 Puhrrc, SlntG Of Ntl¥ Yoik CuailNloa.~0In2ANNe6waY11o4rk7(C1G9 UlllY Camml$aicn J:l!pirsc 8/2GI JiJ-

GREGOAY S. ANTCU. !NO
MOlllY Publlo, Stalad :.,,.,, Voll<
No.G~Sr'>''i
.Quallledln y,,.. •...:.•.•.· Cammlnilm El'*"' ~. ,·c: ·

THIS FORM PROVIOli!O FREE OF CHAl'lQI: !IY www.eeocoFFICE.COM

SA002

11'
STATE OF NEW YORK )
) SS: COUNTY OF NEWYO!K )
DONALD J. ZARDA. being duly sworn, does hereby depose and say as follows
in support ofmy charge ofgender dlscrlminatJon:
1. l was employed at Altitude Express, Inc., dba Skydive Long Island
(hereinafter•Altitu~e") as a Tandem & Accelerated Freefall· Instructor in the summers af 2001, 20()9 and 2010. Altitude Express h11s approximately 20·30 employees. rve been a licensed Instructor In this field since 1995.
2. Jam a male and also a gay man.ram .D.Ql;makingthls charge on the grounds that 1was discriminated on t.he grounds of mysexual orientation. Rather, r am maldngthis charge because, In addition to being discriminated aplnst because Ofmy sexual onenutlon. I was aiso discriminated against becaWJe i:ifmy gender. My claim is beea11Se Idid not conform my appearance and behavtoT to sex stereo~, I suffered adverse employment action, and was discriminated against, at least In part because of my sex.
3. Specifically, it was known at work that 1am gay and Iwas open abo1tt it. My boss, however, the owner ofAltitude, Ray Maynard, ms hostile to any
expression ofmy sexual orientation that did not conform to sex stereotypes, to wit:
First, he criticized my wearing of the color pink at work. Women attbe workplace
were aiiOwtid i:clwearpink,.and dld wit1ioi1t criticism. Howev~, I was not given the
same right.
4. On one occasion, I broke m:v ankle and had to wear a cast It so happened that the·color of the cast I chose was pink. When Ray saw the pink cast for

SA003

1
Def. Exh. I
A
SA003

the first tin1e he scoJfed at It and said, "That looks gay." Lat.er, at a staff.meeting he
said, •1f you're going to remain here for the day, you're going to have to paintthat blade," pcintlng to my cast
S. I left for the day then came back on another occasion. I had not painted tlle cast black as requested, however, because m.JI' foot was exposecl, he was able to see my toenails were as well, which were painted pink At the time, that was rny preference. Women often wore open toe sandals at work. and I am certain I saw wiimen wearing plnlc tcenail polish. Additionally, many other instructors were barefoot at the drop zone. When Ray saw my pink toenail pollsh, however, he insl$tlld that I wear a sock and cover up my foot
6. Ray openly tolerated rnen disQJssln1rwomen and their physical attributes. Specifically, Ray and the men at the officewould 01Je atwom1n'111 breast51 Including on videos that the company had procured for passengers who had hired the company for a joy ride skydive with an accompany!ngvideo.1_Men often talk,ed of their sexual exploits, and Ray openly discussed his marriagei My mentlonlng the
fact that rwas gay to a passenger, however, got: me fired, as Iwill explain.
7. A. skydive ls an Intimate experience. The Instructor must strap himse1f hip to hip 1md Shoulder to shoulder with the cllen~. Before the client and the instructor jump out of the plane, the client is often sitting on the instructor's lap. 'l"he
experience ls tense for a novice, who Is aboutto jump out ofthe planewith a stranger strapped to him or her. Jn order to break the ice, instructors often make light of the intimate situation by making a joke about it.

!·Customers who hired Altitude were referred to as "passengers."
SA004

2
Def. Exh. I
~
SA004

8. Fo1• example; when a ma.n is wapped tll another man, an Instructor
might say ~lllething like, "I bet VOLLdldl)'.t k!JD:-V Y"'" wer~ing tel be strapped so
close to a man .~"This Is awkward for me, too.~ "That's the straps you're feeling'. (referring to a bulge).
9. On more than one occaslon, l heard a straight man even say, jokingly, "Don't W(lny, I'm a lesbian,' when strapped· with men; or, when a straight man was 1 strapped to a straight man (especially when his girlfriend was present), "Does ·you're girlfriend know that you're gay?"
10, My way of breaking the Ice. on occasion over the years. when I was strapped with a woman was to say, "Don't worry, I'm gay." On June 18, 2010, I was
suspended for making this remarkto awoman (I believe her name was Rosanna).·· Ray Intimated that either she .or her boyfriend (or both of them) were offended because Ofit.
·11. . In my termination interview, Ray said that I wu fired because Ihad cllscussed my •per&0nal escapades" outside of the office with a passenger (Rosanna). This was completely untrue; All ofthe men at Altlt11de made light ofthe intimate miture ofbeing sti:apped to a member ofthe opposite sex:'I was fired, however,
because the levity I used honestly referred to my sexual orientation and did not
conform to the straight male macho stereotype.

SA005

3
Def. Exh~ I a
SA005

or 12. Ray also made ether sta~ments in defense his termination {If me,
Including. m(Jst Incredibly, l'hat I had' touched Rosanna inapproprlately."These reasons, however, were a false preteK!: for my termination which happened because ofmy faflure to conform to stereotypical gend11r roles for men. Dated: New York, New Yotic
July 12, 2010
DONALD ZARDA SWORN TO BEFORE ME ON July 12, 2010
'
NOTARY PtlBLIC

.'.'

SA006

4
Def. Exh. I
7
SA006

Case 2:10-cv-04334-JFB-AYS Document 145 Filed 03/28/14 Page 1of2 PagelD #: 2922

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X

DONALD ZARDA,

Plaintiff,

-against-

ORDER 10-CV-4334 (JFB)(ARL)

ALTITUDE EXPRESS, INC., et al.

Defendants.

------------------------------------X
JOSEPH F. BIANCO, District Judge:

For the reasons set forth on the record during the telephone conference on March 28,

2014, IT IS HEREBY ORDERED that:

(1) Defendants' motion for summary judgment (see Docket No. 109) is granted in part

and denied in part. Specifically, the motion is denied with respect to the sexual orientation

discrimination claim based on his termination under New York State law, and the minimum

wage claim under New York State law. The motion is granted as to the gender stereotype

discrimination, hostile work environment, and overtime claims.

(2) Plaintiffs motion for partial summary judgment (Docket No. 132) is denied in its

entirety.

(3) Defendants' motion to strike a portion of plaintiffs reply memorandum (Docket No.

139) is denied.

(4) Plaintiff shall submit his Second Amended Complaint, including the amount-in-

controversy allegation, by March 31, 2014. Defendants' motion to dismiss, if any, shall be filed

by April 15, 2014. Plaintiffs opposition shall be due by April 25. Defendants' reply shall be due

byMay2.

SA007

Case 2:10-cv-04334-JFB-AYS Document 145 Filed 03/28/14 Page 2 of 2 PagelD #: 2923

(5) The parties shall submit a joint pretrial order by June 2, 2014. SO ORDERED.

Dated:

March 28, 2014 Central Islip, NY

JOSEPH F. BIANCO UNITED STATES DISTRICT JUDGE

SA008

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 1of12 PagelD #: 1
.,

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED
IN CIERJrs OFFICE
* * us DISTRlcTCOURTe.D.N.Y. SEP 2l 2010

----------------------------------------------------------------}{
BROOKLYN OFFICE

DONALD ZARDA,

COMPLAINT

Plaintiff,

CV 1 01tr c Jc43 34

-against-

{'1='j r[ JURYTRIAL

DEMANDED

(v'f"'

ALTITUDE EXPRESS, INC., dba Skydive Long Island, and RAY MAYNARD,

BlANCO, J.

Defendants. ----------------------------------------------------------------}{

LINDSAY, M.J.

Plaintiff hereby alleges upon personal knowledge and information and

belief as follows:

NATURE OF THIS ACTION

1. This action is brought by Plaintiff, a gay man, to recover damages for

Defendants' discriminatory and otherwise illegal conduct in, among other

things, discharging him because of a homophobic customer.

THE PARTIES

2. Plaintiff is a citizen of the State of Missouri.

3. Defendants Altitude Express, Inc., operating as "Skydive Long Island" in

Calverton, New York is a corporation organized under the laws of the State of

New York, located in Suffolk County, and operates as a "drop zone," i.e., a place

1
SA009

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 2of12 PagelD #: 2
where individuals can come to Skydive under the dose supervision of experienced Skydive instructors. 4. Defendants Ray Maynard is the Chief Executive Officer of Skydive Long Island and, upon information and belief, its sole shareholder. Upon information and belief he is a citizen of New York. 5. Plaintiff is an experienced Tandem and Freefall (i.e., Skydive) instructor, who was an employee at Skydive Long Island for various summers in the last decade until his termination in July 2010.
JURISDICTION AND VENUE 6. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 in that this action arises under the Constitution and laws of the United States, among them Title VII of the Civil Rights Act of 1964 as amended and the Fair Labor Standards Act. Jurisdiction is also independently predicated on diversity of citizenship. 7. Venue is properly placed in this district pursuant to 28 U.S.C. § 1391(c) in that Defendants Skydive Long Island is deemed to reside in this judicial district.
FACTUAL ALLEGATIONS UNDERLYING PLAINTIFF'S CLAIMS 8. Plaintiff repeats and realleges the allegations set forth in all previous paragraphs as if fully set forth herein.
2
SA010

Case.2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 3 of 12 PagelD #: 3
9. Plaintiff was employed at Altitude Express, Inc., dba Skydive Long Island (hereinafter "Altitude") as a Tandem & Accelerated Freefall Instructor in the summers of 2001, 2009 and 2010. Altitude Express has approximately 20-30 employees. 10. Plaintiff is has been a licensed instructor in this field since 1995. He has participated in 3500 jumps over the course of his distinguished career. 11. He worked for the defendants in the summers of2001, 2009 and 2010. Skydiving is a seasonal sport and defendants operate only in the warmer weather. 12. While employed by Skydive Long Island, plaintiff was expected to be at work, seven days a week, until released. The hours of operation were either 7:30 AM to sunset or 9:30 AM to sunset and thus plaintiff was expected not to leave the premises in case a potential customer came, unless it was raining. 13. Although expected to be on the premises approximately twelve (or more) hours per day, plaintiff was only paid per jump. Some days went by when he would be there all day and not make a dime, not even minimum wage for the hours he spent at work at his employer's insistence.
3
SA011

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 4of12 PagelD #: 4
14. A skydive is an intimate experience. The instructor must strap himself hip to hip and shoulder to shoulder with the client. Because of this, before they dive, students must sign a release that contains the following language:
Ifl am making a student jump, I understand that I will be wearing a harness which will need to be adjusted by the jumpmaster. If my jump is a tandem jump, I understand that the tandem master will attach my harness to his and that this will put my body in close proximity to that ofthe tandem master. I specifically agree to this physical contact between the tandem master and myself. 15. Before the client and the instructor jump out of the plane, the client is often sitting on the instructor's lap. The experience is tense for a novice, who is about to jump out of the plane with a stranger strapped to him or her. 16. Notwithstanding the waiver, in order to break the ice and make the client more comfortable, instructors often make light of the intimate situation by making a joke about it. 17. For example, when a man is strapped to another man, an instructor might say something like - and plaintiff heard at defendants location on a number of occasions - "I bet you didn't know you were going to be strapped so close to a man." Plaintiff also heard, "That's the straps you're feeling" (referring to a bulge).
4
SA012

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 5of12 PagelD #: 5

V'

._,,,

18. On more than one occasion, plaintiff heard straight instructors say, jokingly, when strapped to male clients, "Don't worry, I'm a lesbian." Or, when a straight man was strapped to a straight man (especially when his girlfriend was present), the instructor might say, "Does you're girlfriend know that you're gay?" 19. This was an openly tolerated form of banter. Plaintiff had no problem with it and his way of breaking the ice, on occasion over the years, when I was strapped with a woman was to say, "Don't worry, I'm gay." 20. This was never a problem until one homophobic customer complained about it. On June 18, 2010, plaintiff was suspended for making this remark to a woman whose name, upon information and belief, was Rosanna. 21. It was known at work that plaintiff is gay and he was open about it. Notwithstanding this, however, the terms and conditions of employment were not the same as compared between plaintiff and other similarly situated employees. 22. Ray Maynard was hostile to any expression of sexual orientation that did not conform to sex stereotypes. As one example, he criticized

5
SA013

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 6of12 PagelD #: 6
plaintiffs wearing of the color pink at work. Women at the workplace were allowed to wear pink, and did without criticism. 23. However, on one occasion, plaintiff broke his ankle and had to wear a cast. It so happened that the color of the cast plaintiff chose was pink. When Ray saw the pink cast for the first time he scoffed at it and said, "That looks gay." Later, at a staff meeting he said, "If you're going to remain here for the day, you're going to have to paint that black," pointing to my cast. 24. Plaintiff left for that day then came back on another occasion. I had not painted the cast black as requested, however, because my foot was exposed, he was able to see plaintiffs toenails were as well, which were painted pink. At the time, that was plaintiffs preference. Women often wore open-toed sandals to work, as well as pink toenail polish. 25. Additionally, many other instructors were barefoot at the drop zone. When Ray saw my pink toenail polish, however, he insisted that I wear a sock and cover up my foot. 26. Plaintiff would have tolerated these backwards attitudes towards men and their use of certain colors, had plaintiff not been fired for expressing to a customer that he was gay.
6
SA014

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 7 of 12 PagelD #: 7

v

'-'

27. Ray openly tolerated men discussing women and their physical attributes. Specifically, Ray and the men at the office would ogle at women's breasts, including on videos that the company had procured for passengers who had hired the company for a joy ride skydive with an accompanying video.1 Men often talked of their sexual exploits, and Ray openly discussed his marriage. 28. Plaintiff mentioning the fact that he is gay to a passenger, however, got him fired. 29. In his termination interview, Ray said that plaintiff was being fired because plaintiff had discussed my "personal escapades" outside of the office with a passenger (Rosanna). 30. This was completely untrue. All of the men at Altitude made light of the intimate nature of being strapped to a member of the opposite sex. Plaintiff was fired, however, because the levity he used honestly referred to my sexual orientation and did not conform to the straight male macho stereotype. Mentioning one's sexual orientation is not a discussion of a "personal escapade." 31. Ray also made other statements in defense of his termination of plaintiff, including that Rosanna had touched Rosanna inappropriately.

1 Customers who hired Altitude were referred to as "passengers."
7

SA015

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 8of12 PagelD #: 8

.._.

'V

Rosanna thus complained simultaneously that plaintiff was gay and that he had gratified himself sexually by touching her in a heterosexual manner. 32. These reasons, however, were a false pretext for plaintiff termination which happened because of one homophobic customer's complaint about being near a gay person and of because of plaintiffs failure to conform to stereotypical gender roles for men.
FIRST CAUSE OF ACTION DISCRIMINATION UNDER TITLE VII 33. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 34. Plaintiff was fired because his behavior did not conform to sex stereotypes. 35. Such actions were in violation of Title VII. 36. By virtue of the foregoing, Plaintiff has been damaged.
SECOND CAUSE .QE ACTION SEXUAL ORIENTATION DISCRIMINATION UNDER THE NEW YORK
STATE HUMAN RIGHTS LAW 37. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 38. Plaintiff was fired because of his sexual orientation.

8
SA016

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 9 of 12 PagelD #: 9
39. Such actions were in violation of the Executive Law of the State of New York. 40. By virtue of the foregoing, Plaintiff has been damaged.
TIIlRD CAUSE OF ACTION VIOLATION OF THE FLSA 41. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 42. At all times mentioned herein, as limited by the applicable statutes of limitation, Defendants failed to comply with the FLSA, in that Defendants frequently required and permitted Plaintiffto work more than 40 hours per week, but provision was not made by Defendants to pay Plaintiff at the rate of one and one-halftimes the regular rate for the hours worked in excess of the hours provided for in the FLSA. 43. Additionally, plaintiff was not even paid minimum wage for the time he was required to sit and wait around for potential skydive clients to appear 44. Most ofthe records concerning the number of excess hours worked by Plaintiff, and the compensation they received in work weeks in which excess hours were worked, are in the exclusive possession and under the sole custody and control of the Defendants. 45. Plaintiff is unable to state at this time the exact amount owing to them at this time, and proposes to obtain such information by appropriate
9
SA017

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 10of12 PagelD #: 10
discovery proceedings to be taken promptly in this cause. 46. Upon information and belief, Defendants is and was at all relevant times herein aware that overtime pay is mandatory for non-exempt employees who work more than 40 hours per week. 47. Upon information and belief, Defendants are and were at all material times herein fully aware that Plaintiffworked more than 40 hours per week without receiving overtime compensation for such additional work. 48. Additionally, plaintiff did not even earn minimum wage for the majority ofhours he spent at the defendant company. 49. Based upon the foregoing, Defendants, for violating the FLSA, are liable on Plaintiffs first cause of action in an amount to be determined at trial, plus liquidated damages, attorney's fees and costs.
FOURTH CAUSE OF ACTION VIOLATION OF THE NEW YORK STATE OVERTIME LAW 50. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 51. At all material times herein Defendants failed to comply with, inter alia, NYLL § 663(1) and 12 NYCRR § 142-2.2 in that Plaintiff consistently worked for Defendants in excess ofthe maximum hours provided by state and federal law, but provision was not made by Defendants to pay Plaintiff at the rate of one and one-halftimes the regular rate for the hours worked in
10
SA018

Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 11 of 12 PagelD #: 11
. .
excess ofthe hours provided for by state and federal law. 52. Upon information and belief, Defendants were at all material times herein aware that overtime pay is mandatory for non-exempt employees who work more than 40 hours per week. 53. Upon information and belief, Defendants' non-payment of overtime pay to Plaintiff was willful. 54. Based upon the foregoing, Defendants, for consistently violating New York's Labor Law and its implementing regulations are liable on Plaintiffs second cause of action in an amount to be determined at trial, plus a 25% statutory penalty, attorney's fees and costs.
WHEREFORE, Plaintiff demands as follows: A. Compensatory damages in excess of the jurisdictional
limit of this court; B. Punitive damages; C. Cost of suit and attorneys fees; D. Liquidated damages;
11
SA019

' '
..Case 2:10-cv-04334-JFB-AYS Document 1 Filed 09/23/10 Page 12 of 12 PagelD #: 12

E. proper.

Such other relief as the Court may deem just and

Dated: New York, New York September 20, 2010

..>GREGORY ANTOLLINO Attorney for Plaintiff 1123 Broadway Suite 1015 New York, NY 10010 (212) 334-7397

12
SA020

• ease 2:10-cv-04334-JFB-GRB Document 146 Filed 03/28/14 Page 1 of 14 PagelD #: 2924

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------){
DONALD ZARDA,

SECOND AMENDED COMPLAINT

Plaintiff,
-against-
ALTITUDE EXPRESS, INC., dba Skydive Long Island, and RAY MAYNARD,

10-cv-04334-JFB
j
JURY TRIAL DEMANDED

Defendants. ----------------------------------------------------------------){
Plaintiff hereby alleges upon personal knowledge and information and

belief as follows:

NATURE OF THIS ACTION

1. This action is brought by Plaintiff, a gay man, to recover damages for

Defendants' discriminatory and otherwise illegal conduct in, among other

things, discharging him because of a homophobic customer.

THE PARTIES

2. Plaintiff at the time of the filing of this complaint was a citizen of the State

of Missouri and is currently a citizen of the State of Texas. The amount in

controversy concerning the dispute - including merely those claims that

survived summary judgment- exceeds $75,000.

1 SA021

Case 2:10-cv-04334-JFB-GRB Document 146 Filed 03/28/14 Page 2 of 14 PagelD #: 2925
3. Defendants Altitude Express, Inc., operating as "Skydive Long Island" in Calverton, New York is a corporation organized under the laws of the State of New York, located in Suffolk County, and operates as a "drop zone," i.e., a place where individuals can come to Skydive under the close supervision of experienced Skydive instructors. 4. Defendant Ray Maynard is the Chief Executive Officer of Skydive Long Island and, upon information and belief, its sole shareholder. Upon information and belief he is a citizen of New York. 5. Plaintiff is an experienced Tandem and Freefall (i.e., Skydive) instructor, who was an employee at Skydive Long Island for various summers in the last decade until his termination in July 2010.
JURISDICTION AND VENUE 6. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 in that this action arises under the Constitution and laws of the United States, among them Title VII of the Civil Rights Act of 1964 as amended and the Fair Labor Standards Act. Jurisdiction is also independently predicated on diversity of citizenship. 7. Venue is properly placed in this district pursuant to 28 U.S.C. § 1391(c) in that Defendants Skydive Long Island is deemed to reside in this judicial district.
FACTUAL ALLEGATIONS UNDERLYING PLAINTIFF'S CLAIMS
2
SA022

Case 2:10-cv-04334-JFB-GRB Document 146 Filed 03/28/14 Page 3 of 14 PagelD #: 2926
8. Plaintiff repeats and realleges the allegations set forth in all previous paragraphs as if fully set forth herein. 9. Plaintiff was employed at Altitude Express, Inc., dba Skydive Long Island (hereinafter "Skydive Long Island") as a Tandem & Accelerated Freefall Instructor in the summers of 2001, 2009 and 2010. Altitude Express has approximately 20-30 employees. 10. Plaintiff is has been a licensed instructor in this field since 1995. He has participated in 3500 jumps over the course of his distinguished career. 11. He worked for the defendants in the summers of 2001, 2009 and 2010. Skydiving is a seasonal sport and defendants operate mostly in the warmer weather, although not exclusively so. 12. While employed by Skydive Long Island, plaintiff was expected to be at work, seven days a week, until released. 13. The hours of operation were either 7:30 AM to sunset or 9:30 AM to sunset. 14. Plaintiff was expected not to leave the premises in case a potential customer came, unless it was raining. 15. Although expected to be on the premises approximately twelve (or more) hours per day, plaintiff was only paid per jump.
3
SA023

Case 2:10-cv-04334-JFB-GRB Document 146 Filed 03/28/14 Page 4 of 14 PagelD #: 2927
16. Some days went by when he would be there all day and not make a dime, not even minimum wage for the hours he spent at work at his employer's insistence. 17. A skydive is a forcibly intimate experience, for the safety of the passenger. Novices who yearn for the thrill of a skydive cannot do so on their own, and thus the instructor must strap himself hip-to-hip and shoulder-to-shoulder with the client. 18. Because of this, before they dive, students at Skydive Long Island must sign a release that contains the following language:
If I am making a student jump, I understand that I will be wearing a harness which will need to be adjusted by the jumpmaster. If my jump is a tandem jump, I understand that the tandem master will attach my harness to his and that this will put my body in close proximity to that of the tandem master. I specifically agree to this physical contact between the tandem master and myself. 19. Before the client and the instructor jump out of the plane, the client is typically sitting on the instructor's lap. The experience is typically tense for a novice, who is about to jump out of the plane with a stranger strapped to him or her. 20. Notwithstanding the waiver, in order to break the ice and make the client more comfortable, instructors often make light of the intimate situation by making a joke about it.
4
SA024

Case 2:10-cv-04334-JFB-GRB Document 146 Filed 03/28/14 Page 5 of 14 PagelD #: 2928
21. For example, when a man is strapped to another man, plaintiff witnessed instructors saying something like, "I bet you didn't know you were going to be strapped so close to a man." Plaintiff also heard instructors state, in reference to a budge protruding from the equipment, "That's the straps you're feeling.''. 22. On more than one occasion, plaintiff heard straight instructors say, jokingly, when strapped to male clients, "Don't worry, I'm a lesbian.'' Or, when a straight man was strapped to a straight man (especially when his girlfriend was present), the instructor might say, "Does you're girlfriend know that you're gay?" 23. This was an openly tolerated form of banter. Plaintiff, as an openly gay man was often the butt of jokes about his sexual orientation. He had mixed feelings about that, but was not troubled when sexual banter was a way of breaking the ice in a tense situation. On occasion, over the years, when he was tightly strapped to a woman he might say something like, "You don't have to worry about us being so close because I'm gay." 24. This was never a problem until one homophobic customer complained about it. On June 18, 2010, plaintiff was suspended for
5
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making this remark to a woman whose name, upon information and belief, is Rosanna. 25. It was known at work that plaintiff is gay and he was open about it.Notwithstanding this, however, the terms and conditions of employment were not the same as compared between plaintiff and other similarly situated employees. 26. Ray Maynard was hostile to any expression of sexual orientation that did not conform to sex stereotypes. Plaintiff has a typically masculine demeanor, but as one example, he criticized plaintiffs wearing of the color pink at work. Women at the workplace were allowed to wear pink, and did without criticism. 27. On one occasion, for example, plaintiff broke his ankle and had to wear a cast. It so happened that the color of the cast plaintiff chose was pink. When Ray saw the pink cast for the first time he scoffed at it and said, "That looks gay!" Later, at a staff meeting he said, "If you're going to remain here for the day, you're going to have to paint that black," pointing to plaintiffs cast. It was not a joke. 28. Plaintiffs toenails were also painted pink, which at the time was plaintiffs preference. Women often wore open-toed sandals to work, as well as pink toenail polish.
6

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29. Additionally, many other instructors were barefoot at the drop zone. When Ray saw plaintiffs pink toenail polish, however, he insisted that plaintiff wear a sock and cover up his foot. 30. Plaintiff would have begrudgingly tolerated these backwards attitudes towards men and their use of certain colors, had plaintiff not been fired for expressing to a customer that he was gay. 31. Ray openly tolerated men discussing women and their physical attributes. Specifically, Ray and the men at the office would ogle at women's breasts, including on videos that the company had procured for passengers who had hired the company for a joy ride skydive with an accompanying video.1 Men often talked of their sexual exploits, and Ray openly discussed his problematic marriage. 32. Plaintiff mentioning the fact that he is gay to a passenger, however, got him fired. 33. In his termination interview, Ray said that plaintiff was being fired because plaintiff had discussed his "personal escapades" outside of the office with a passenger (Rosanna). 34. This was completely untrue plaintiff merely stated he was gay. 35. Being gay is not an escapade; it is an immutable condition.
1 Customers who hired Altitude were referred to as "passengers." 7

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36. All of the men at Altitude made light of the intimate nature of being strapped to a member of the opposite sex. Plaintiff was fired, however, because the levity he used honestly referred to his sexual orientation and did not conform to the straight male macho stereotype. 37. Mentioning one's sexual orientation is as much a protected activity as mentioning to someone that one is Catholic, Scottish, or Hispanic. 38. Ray made another statement in defense of his termination of plaintiff, including that plaintiff had allegedly touched Rosanna inappropriately, but he knew this to be a lie, as plaintiff is gay and Rosanna would have to be touched in order to protect her life. 39. Later, although he could have used the "touching" as a basis to get plaintiffs unemployment benefits denied, he did not and merely alleged that plaintiff should not get unemployment because he provided information of a "personal nature," or words to that effect, to Rosanna. 40. The "personal information" revealed was that plaintiff is gay; Maynard argued to the Unemployment Division that this was "misconduct" that should disqualify plaintiff from benefits. 41. Unemployment disagreed and plaintiff was awarded benefits. Neither Maynard nor Unemployment mentioned anything in connection
8

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with the alleged touching, either because it did not happen or, in the alternative, even Maynard did not believe it. 42. It is unknown to plaintiff what Rosanna said before this complaint arose, but she did not complain to Maynard, merely said something to her boyfriend, who relayed it to Maynard, who immediately suspended plaintiff and docked his pay because he refunded the boyfriend's money. 43. The fact that Rosanna would simultaneously complain that plaintiff was gay and that he touched her inappropriately underscores the facially pretextual manner of this allegation, especially in light of the release that all passengers must sign, acknowledging that they will be in close bodily contact with instructors, and especially since plaintiff was regarded as an excellent skydive instructor, even by Maynard. 44. Maynard, however, did not even investigate Rosanna's allegations by inquiring of plaintiffs side of the story. He did not question plaintiff about the allegations - again, assuming she made them - but decided to accept them as true because, after all, she was a woman, and therefore would give Maynard cover for firing plaintiff since a woman, in general, would be more likely to be believed in the context of a complaint about inappropriate touching by a man.
9
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45. Even though there was a videotape of the jump that showed no inappropriate touching, Maynard dismissed said evidence and purposely lost custody of the tape so that plaintiff could not use it in his defense. 46. In all, the allegation of touching, if it were even made by Rosanna, was a false pretext for plaintiff's termination, which happened because of one homophobic customer's complaint about being near a gay person and of because of plaintiff's failure to conform to stereotypical gender roles for men. 47. Maynard knew that plaintiff is a homosexual and would have no motive to touch a female passenger in any manner other than to protect her safety in accordance with proper procedures. 48. Maynard knew that Rosanna had signed a release wherein she knew she would in close bodily contact with an instructor. 49. Maynard's reaction to Rosanna's alleged complaint - without even as much as asking for plaintiff's side of the story -- is an instance of sex stereotyping, insofar as it validates a woman's complaint against a man whereas a man's complaint against a woman - gay or straight - would never have been accorded any credence in similar circumstances. Ray knew this, yet he was more than happy to use what he knew to be a
10

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patently false touching complaint against a man as a pretext for firing for being - and saying - that plaintiff is gay. 50. In the alternative, if Maynard made up the allegation of touching, it was meant to bolster his justification for terminating plaintiff for stating he is gay. Maynard's invoking a sex stereotype - i.e., that a woman who complains of being touched by a man must be believed without investigation - in order to justify an unlawful termination is just as bad as if the sex stereotype originated in Rosanna's mind in order to give credence to her frivolous complaint about being told that someone is gay. Plaintiff now sues for relief.
FIRST CAUSE OF ACTION DISCRIMINATION UNDER TITLE VII 51. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 52. Plaintiff was fired because his behavior did not conform to sex stereotypes and such actions were in violation of Title VII. 53. By virtue of the foregoing, Plaintiff has been damaged.
11
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SECOND CAUSE OF ACTION SEXUAL ORIENTATION DISCRIMINATION UNDER THE NEW YORK
STATE HUMAN RIGHTS LAW 54. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 55. Plaintiff was fired because of his sexual orientation. 56. Such actions were in violation of the Executive Law of the State of New York. 57. By virtue of the foregoing, Plaintiff has been damaged.
THIRD CAUSE OF ACTION GENDER DISCRIMINATION UNDER THE NEW YORK STATE HUMAN
RIGHTS LAW 58. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein. 59. Plaintiff was fired because his behavior did not conform to sex stereotypes. 60. Such actions were in violation of the New York State Human Rights Law. 61. By virtue of the foregoing, Plaintiff has been damaged.
FOURTH CAUSE OF ACTION VIOLATION OF THE NEW YORK MINIMUM WAGE LAW 62. Plaintiff repeats and realleges the allegations set forth in all previous allegations as if fully set forth herein.
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63. At all material times herein Defendants failed to comply with, inter

alia, NYLL § 663(1) and 12 NYCRR § 142-2.1 in that Plaintiff

consistently worked for Defendants without being paid even a minimum

wage for hours in which there were no paying customers.

64. Upon information and belief, Defendants were at all material times

herein aware that minimum wage is mandatory:

65. Upon information and belief, Defendants' non-payment of

minimum wages to Plaintiff was willful.

66. Based upon the foregoing, Defendants, for consistently violating

New York's Labor Law and its implementing regulations are liable on

Plaintiffs second cause of action in an amount to be determined at trial,

plus a 100% statutory penalty and/or liquidated damages, attorney's

fees and costs.

WHEREFORE, Plaintiff demands as follows:

A.

Compensatory damages in excess of the jurisdictional

amount required of this court;

B.

Punitive damages;

C.

Cost of suit and attorneys fees;

D.

Liquidated damages;

13
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E.

Such other relief as the Court may deem just and proper.

Dated: New York, New York March 28, 2014
s
GREGORY ANTOLLINO GA 5950 Attorney for Plaintiff 275 Seventh Avenue Suite 705 New York, NY 10001

14
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Case 2:10-cv-04334-JFB-AYS Document 211 Filed 08/07/15 Page 1of13 PagelD #: 3995

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

DONALD ZARDA, Plaintiff
vs. ALTITUDE EXPRESS, et ano.,
Defendants

) ) Civil Action No. 10 CV 4334 (JFB) ) ) ) ) ) ) ) )

PLAINTIFF'S MEMORANDUM OF LAw IN SUPPORT OF ms MOTION FOR
RECONSIDERATION OF THE DISMISSAL OF THE TITLE VII CLAIM
-- - --•--- -~·----- -
GREGORY ANTOLLINO, ES1 · Attorneyfor Plaintiff
275 Seventh Avenue Suite 705 , New York, NY 10001 (212) 334-7397 '
August 7, 2015

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PRELIMINARY STATEMENT Congratulations - or condolences, as the case might be; I know you are a cautious judge, and this might be an uncomfortable position to be in, but You can be the first judge to hold that Title VII protects sexual orientation discrimination. You not only have that power, ab initio, as any court, rogue or otherwise, has power; but, for the reasons that follow, you should be the first judge to to hold that Title VII protects sexual orientation. The law, if you follow it closely, has opened up ever so slightly to allow this. The weight of authority at this time in history demonstrates that, while this admittedly is a close question, the deference you owe the EEOC' under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984) would not only allows, but essentially requires you to defer.to agency interpretation Qi the absence of evidence of Congressional intent. You are in a position to ignore the mandate of Chevron, or apply the wooden, dated rule of Simonton v. Runyon, 232 F.3d 33 (2d Cir.2000) beyond that which the panel recognized its holding. Simonton was a close case written in precatory language; it was even amended to remove the following headnote (originally 7): Because the term "sex" in Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq ., refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation. Compare id. with its prior incarnation, reported at 225 F.3d 122 (2d Cir. 2000). The Second Circuit allowed the result to stand in the amended opinion, but forsaw that the statement set forth in that headnote should not enter the federal reporter. Headnotes don't count for holdings: We're taught that in the first week of law school, but the removal of this headnote is significant because it speaks to the Circuit's intent in affirming the dismissal of a sexual-orientation discrimination claim on the narrow grounds of the grant of a l 2(b)(6) motion, recognizing that the law would
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likely develop in such a way as to make such a blanket statement imprudent. Further, Simonton did not analyze the legislative history ofTitle VII, but merely subsequent Congressional attempts to make it Title VII more clear. 232 F.3d at 35. But at the time there was no agency interpretation and that's not the way a court applies Chevron; the question is simply whether the agency's interpretation is reasonable, and whether Congressional intent in adopting the particular statute in question said anything different about how the agency interpreted the statute. Simonton not only did not analyze agency interpretation, but it not analyze the original congressional intent, which it admitted was vague. Id. at 35, citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986).1
1 Imagine a member of Congress introducing a bill protecting from discrimination Muslim worshippers who follow Sharia law. Such a bill would get nowhere in this political climate, notwithstanding that Title VII protects religious worship of any kind. If, hypothetically, that were to happen and a person thereafter were to bring suit alleging discrimination on the grounds of membership in the sect of Muslim faith that follows Sharia law, the responsibility ofthe Court would be to protect the minority based on the plain language ofthe statute, not interpolate Congressional intent from the 1960's based on a more current wave of discrimination. See. i;,g,,, Awad v. Ziriax, 754 F. Supp. 2d 1298 (W.D. Okla. 2010), affd 670 F.3d 1111 (10th Cir. 2012) (granting injunction on legislative effort to outlaw Sharia Law on multiple grounds.). The polity did not speak of Sharia Law when the Civil Rights Act was passed, and no one knows why Title VII was adopted with sex as a protected class. The fact is that sex was thrown into the Act by an amendment to derail the bill, by an avowed racist, one "Mr. Smith" from Virginia, who absurdly noted: "The census of 1960 shows that we had [an imbalance] in this country ... of 2,661,000 females. Just why the Creator would set up such an imbalance of spinsters, shutting off the 'right' of every female to have a husband of her own, is, of course, known only to nature. But I am sure you will agree that this is a grave injustice to womankind and something the Congress and President Johnson should take immediate steps to correct, especially in this election year. Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their 'right' to a nice husband and family?" 110 Cong. Rec. 2577 (1964) (quoted in Francis J. Vaas, Title VII: Legislative History, 7 B.C.L. Rev. 431, 441-42 (1966)).
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The question for this Court is not only whether Chevron deference trumps appellate precedent. The question is more nuanced to these facts: First, would the rules of Chevron apply without regard to appellate authority; (2) whether there is any bright line rule forbidding a district court from applying Chevron given newly adopted agency decisionmaking; and (3) whether these nuanced circumstances including (1) an almost complete absence of legislative history; (2) a clear statement of interpretation by the agency; (c) a very carefully worded decision in Runyon that was subsequently amended; and, most significantly (d) subsequent Second Circuit authority that has given deference to the EEOC' s interpretation of the application of Title VII to sexual minorities. Finally, I'll throw in the judical economy argument. This is clearly a close call, but if you follow Chevron and you look to the clear development of Title VII in favor of the protection of sexual minorities like Donald Zarda, you would be courageous, but well suited to grant this motion.
PROCEDURAL SUMMARY The procedural events leading to this motion are, synoptically, as follows: Plaintiff filed his complaint in 2010 alleging sexual orientation discrimination under state law and discrimination under Title VII alleging sex stereotypes under the nuanced rules afforded by the Second Circuit. See.~. Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009). At the time of summary judgment, the Second Circuit had promulgated a case-by-case approach in which to a litigant could allege sexual sex stereotypes as a subset under Title VII, but shyed away from blatant sex stereotype claims based on the stereotype that men associate sexually with other men. The reasoning, as stated in Simonton, was that Congress had not adopted a sexual orientation discrimination cause of action, ipso facto, it must not have interpreted Title VII to have been
3
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inclusive of sexual orientation discrimination. Though I would have preferred otherwise, this Court did not, on summary judgment, believe that there were sufficient facts to make it to the jury under Title VII, but allowed the sexual orientation claim to go trial given diversity. Sadly, the plaintiff died young, but there was sufficient evidence to allow his estate to substitute for the plaintiff and the case is scheduled for trial on October 13.
ARGUMENT I. CHANGES IN THE INTERPRETATION OF TITLE VII The EEOC, starting in 2011, began to take a more expansive view of Title VII as it related to sexual minorities. First, in Macy v. Holder, EEOC Appeal No. 0120120821, the Commission found that a transgender woman was discriminated against on the basis of Title VII, despite additional federal protections for gay and lesbian and transgender employees. The Commission held: While Complainant could have chosen to avail herself of the Agency's administrative procedures for discrimination based on gender identity, she clearly expressed her desire to have her claims investigated through [the Title VII]. Each of the formulations of Complainant's claims are simply different ways of stating the same claim of discrimination "based on ... sex," a claim cognizable under Title VII. Id. at p.6. After Macy came down, no less than the Second Circuit applied it in reversing Judge Kaplan2 on an equitable-tolling issue. Fowlkes v. Ironworkers Local 40, 2015 U.S. App. LEXIS 10339 (2d Cir. N.Y. June 19, 2015): It was not until Macy v. Holder, (E.E.0.C. Apr. 20, 2012), published after Fowlkes filed his 2011 complaint, that the EEOC altered its position and concluded that discrimination against transgender individuals based on their transgender status does constitute
2 The decision said it was both Judge Preska and Kaplan; PACER confirms it was actually Judge Kaplan who sat in the district court.
4
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sex-based discrimination in violation of Title VII. Thus, Fowlkes's failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had "taken a firm stand" against recognizing his Title VII discrimination claims. Id. at *18. I think your answer is right there. The Second Circuit recognized Macy as explaining Title VII, notwithsanding no previous caselaw supporting the argument, and, indeed, some caselaw that seemed to contradict it. Now we have Complainant v. Foxx, Appeal No. 0120133080, which I have provided the court and holds straight away that sexual orientation discrimination is sex discrimination both because of sex steretypes and for associational discrimination. It chided the analysis that other courts have reached in rejecting the claims of sexual minorities' use of Title VII by holding that associational discrimination has long been recognized as a cognizable claim under Title VII, despite that said statute does not carve out a niche for blacks who date whites. The same is true as to sex stereotypes; there is no statutory language that creates a cause of action for "masculine women," nor, for that matter, sexual harassment - something that wasn't recognized until the 1970's, Meritor, nor same-sex sexual harassment, which wasn't recognized until the I990's. Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 79, 78-80 (1998) ("statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."). Lower courts and litigants cannot veritably wait until the Supreme Court rules on every single controversy. District Courts have to take a stand on issues that are foreseeably in the offing. Judge Weinstein recently held Foxx to be a landmark decision Roberts v. UPS, Inc., 2015 U.S. Dist. LEXIS 97989, *40 (E.D.N.Y. July 27, 2015) and described how the arc of history over the last few decades - and, indeed, since the filing of this case - has changed markedly towards
5
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gays and lesbians. Id. at 39-42. He noted that "[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change." (quoting Pension Benefit Guar. Com. v. LTV Corp., 496 U.S. 633, 650 (1990) (citations omitted)). It so happened that Roberts case was a diversity matter filed by the plaintiff in federal court, that pied no cause of action under Title VII, merely five claims under the City Administrative Code. (I checked PACER as to this, and Judge Weinstein's analysis doesn't mention Title VII as a basis for plaintiff's claims.) His analysis as to Title VII is therefore dicta, but one of the most highly respected and smartest judges in the country cannot be ignored.
II. FOXX ALONE WOULD REQUIRE CHEVRON DEFERENCE The question presented to the Court is whether, in the midst of circuit caselaw that goes in one direction, what should the court do when the agency that interprets the law in question comes out with a holding seemingly, but not entirely, contrary to the Circuit authority. First, the question would be whether Foxx would require Chevron deference in the first instance. Chevron requires a two-part test:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction ofthe statute.
Chevron, U.S.A.. Inc. v. NRDC. Inc., 467 U.S. 837, 842-43 (1984). 6
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A. Foxx Satisfies Chevron Step One: Statutory Ambiguitv Chevron deference is afforded to the adjudicatory function of the EEOC. See United States. v. Mead Coi:p., 533 U.S. 218, 226-27 (2001). See also Kasten v. Saint-Gobain Performance Plastics Coi:p., 131 S.Ct. 1325, 1335-36 (2011) citing Mead, 522 U.S. at 229, 234-35; City of Arlington. Tex. v. FCC, 133 S.Ct. 1863, 1874-75 (2013). Thus, the EEOC's commission decision in Foxx should be afforded deference insofar as its opinion resolves "ambiguities in statutes within [the] agency's jurisdiction to administer ... [and] the agency [filled] the statutory gap in a reasonable fashion." Nat'l Cable & Tele. Comms. Assn. v. Brand X Internet Servs., 545 U.S. 967, 980 (2005). Furthermore, as noted above in lengthy footnote 1, as well as Meritor, Title VII' s legislative history does not address the meaning of the term "sex." Statutory terms are deemed "ambiguous" for Chevron purposes where no clear meaning can be divined after subjecting the text to traditional tools of statutory interpretation, including looking at the structure of the statute, drawing inferences of intent from statements of statutory goals, applying myriad canons of interpretation, and assessing statements from legislative history. K Mart Coi:p v. Cartier. Inc., 486 U.S. 281, 300 (1988). Where traditional tools of interpretation fail to divine definitive meaning, "ambiguity" is established. As such, the Supreme Court has repeatedly upheld that agency's interpretations pertaining to sex. See. e.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 679-83 (1983) (interpreting sex to include discrimination against men and to reach inequitable employer provided health benefits); Meritor, 477 U.S. at 65 (interpreting sex to include sexual harassment); Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (interpreting sex to include gender and sex stereotyping); Oncale v. Sundowner Offshore
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Servs., 523 U.S. 75, 78-79 (1998) (interpreting sex to include same-sex sexual harassment). Because the meaning of"sex" is ambiguous, Foxx satisfies the first step of Chevron.
B. Foxx Satisfies Chevron Step Two: Permissible Interpretation Chevron step two is satisfied where the agency's interpretation is deemed to "reasonably effectuate Congress's intent for" the underlying statute and presents a tenable policy decision in light of statutory goals." Texas v. United States, 497 F.3d 491, 506 (5th Cir. 2007) citing Chevron, 467 U.S. at 845 ("If[the agency's] choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute," a court will not disturb that choice "unless it appears from the statute or legislative history that the accommodation is not one that Congress would have sanctioned."). See also Nat'! Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (noting deference at step two is afforded where the agency is deemed to have made a "reasonable policy choice" and quoting Chevron, 467 U.S. at 845). As the Supreme Court has recognized elsewhere, Title VII' s proscription of discrimination "because of ... sex" reaches "reasonably comparable evils" that are captured by the statutory text even where they lie outside Congress' "principal" target at enactment. Oncale, 523 U.S. at 79 (Scalia, J.). Thus, although Congress did not expressly state that Title VII would reach male-on-male sexual harassment, the broad statutory proscription of all "discrimination because of ... sex" necessarily captures it. Id. ("[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."); see also Newport News, 462 U.S. at 697-81 (rejecting the argument that discrimination against men does not violate Title VII despite the fact that discrimination against women was plainly the principal
8
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problem that Title VII's prohibition of sex discrimination was enacted to combat). Moreover, the EEOC's interpretation of Title VII need not be the "best one" in order for it to be "reasonable." E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107, 115 (1988) (affording Chevron deference and noting "it is axiomatic that the EEOC's interpretation of Title VII ... need not be the best one by grammatical or any other standards. Rather, the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference.") (emphasis added).
The reasonability of the interpretation of sex is made plain by the end of the decision where the Commission states,
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. "Sexual orientation" as a concept cannot be defined or understood without reference to sex. A man is referred to as "gay" if he is physically and/or emotionally attracted to other men. A woman is referred to as "lesbian" if she is physically and/or emotionally attracted to other women.... Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. Foxx at 6-7. There is nothing unreasonable about this interpretation and indeed it is self-evident. Furthermore, the Commission notes later in its decision that there is nothing in Title VII that protects "masculine women," "people in interracial relationships," women as "mothers," or non-religious people, but all of these categories are protected under Title VII. This analysis is unassailable, not just reasonable. III. CHEVRON DEFERENCE SHOULD TRUMPS CIRCUIT AUTHORITY. AT LEAST WHERE THE AUTHORITY DID NOT ENGAGE IN A CHEVRON ANALYSIS I have found two cases that mention in passing, but that do not discuss, a court's obligations under Chevron versus contrary circuit authority. In Nazifv. Computer Scis. Coi:p., 2015 U.S. Dist. LEXIS 78673 (N.D.Calif.2015), the district court noted the lack of circuit authority on a point for which there was agency authority in a footnote, p* 17, n.5. The same is
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true in Austin v. Jostens. Inc., 2008 U.S. Dist. LEXIS 83412 p*33 (D.Kan.2008). Both of these courts merely noted that there were no conflicts between Circuit and agency authority and did not analyze how to grapple with such a conundrum were it to exist. There is one decision, however, wherein the Ninth Circuit held on its own accord that Chevron deference trumped another form of statutory construction adopted by the Supreme Court in interpreting statutes pertaining to Indian Tribes. Confederated Salish & Kootenai Tribes v. United States, 343 F .3d 1193, 1198 (9th Cir. 2003). This decision is instructive insofar as the Ninth Circuit, without guidance from the higher court, decided that Chevron deference would trump other binding authority from the Supreme Court. So too must this Court decide whether newly created Chevron deference should trump Circuit authority that is obviously evolving. Further, I contend that Fowlkes v. Ironworkers Local 40, gives you that permission. The Circuit appointed counsel to the plaintiff in Fowlkes, whose case was dismissed because it had not been filed within ninety days (plus time for mailing) of the issuance of the right to sue letter. It allowed a healthy period of equitable tolling, however, noting that
Fowlkes may have a colorable argument that filing a charge alleging discrimination based on his transgender status would have been futile. When Fowlkes filed his 2011 complaint, the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status.... It was not until Macy v. Holder, published after Fowlkes filed his 2011 complaint, that the EEOC altered its position and concluded that discrimination against transgender individuals based on their transgender status does constitute sex-based discrimination in violation of Title VII. ... Thus, Fowlkes's failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had "taken a firm stand" against recognizing his Title VII ... claims.
Fowlkes v. Ironworkers Local 40, 2015 U.S. App. LEXIS 10339, *17-18 (2d Cir. N.Y. June 19, 2015). The Circuit authority, indeed, had for the most part followed the earlier line of EEOC interpretation. See. e.g., Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) and Morales
10
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Case 2:10-cv-04334-JFB-AYS Document 211 Filed 08/07/15 Page 12of13 PagelD #: 4006
v. ATP Health & Beauty Care, Inc., 2008 U.S. Dist. LEXIS 63540, *23 (D. Conn. Aug. 18, 2008) (citing Dawson). Now, all of the sudden, because of a new agency interpretation, a plaintiff is given the rare gift of an equitable tolling. This says something. This says that the Circuit looks to E.E.O.C. guidance in interpreting Title VII claims, and that you would be well advised to as well. Is the Circuit going to reverse you because you applied Chevron deference when it, too, is applying Chevron deference in a changing environment for sexual minorities? I don't see how a higher Court can insist that you afford deference under Chevron, yet simultaneously disregard it because of dated authority that does not afford Chevron deference. The Circuit, if this case reaches it, too, will have to give Chevron deference. As one commentator noted:
Thus, if the Court's prior decision speaks in clear and unambiguous terms to the precise issue at hand, the prior decision should be controlling. But ifthe Court has not confronted the precise issue or if its holding is ambiguous, then the Court should uphold the agency's reasonable interpretation of the Court's precedent. This approach reconciles the values of stability, predictability, and rule of law underlying stare decisis with the advantages of flexibility and political accountability underlying Chevron. Rebecca White, "The Stare Decisis "Exception" to the Chevron Deference Rule," 44 Florida Law Review 727-28 (1992). Chevron "broke new ground by invoking democratic theory as a basis for its deferential approach to judicial review." Thomas W. Merrill, "Judicial Deference to Executive Precedent," 101 Yale L.J. 969, 972-75 (1992) (discussing varying pre-Chevron methods used by the Supreme Court in determining when to defer to agency interpretation of statutes). As the Supreme Court has stated, "Precedent is not 'sacrosanct'; given a strong enough justification for overruling its precedent, the Court will not hesitate to do so." Patterson v. McClean Credit Union, 491U.S.164,172 (1989). The Second Circuit binds you to Chevron deference, New York
11
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Case 2:10-cv-04334-JFB-AYS Document 211 Filed 08/07/15 Page 13of13 PagelD #: 4007

v. FERC, 783 F.3d 946 (2d Cir. 2015), and it recognized in Fowlkes, while not mentioning Chevron, that the agency's position has changed. Simonton cannot withstand Foxx, so you should recognize the change that is occurring and reinstate the Title VII claim.

IV. JUDICIAL ECONOMY MITIGATES IN FAVOR OF REINSTATING TITLE VII During the conference, the Court noted that you would not prefer to allow the jury to
deliberate on punitive damages, available under Title VII but not the New York Law, simply on the grounds ofjudicial economy. Nevertheless, I mention it again because with this new authority, it is almost certain that courts will adopt Foxx. It would be burdensome to everyone to retry a case on the grounds of punitive damages when, in the contingency that I am wrong - and I will not seek to execute a punitive damages judgment pending appeal, nor need we litigate attorneys' fees until a mandate issues - that we have to come back and do this all over again after five years oflitigation and the death of the plaintiff. See. e.g., In Re: Nexium (Esomeprazole), slip op. (D.Mass July 30, 2015) (in discussing a trial, an experienced judge notes, "Like many judges, I reasoned that, since we were but a day away from submitting the case to the jury, the better part of valor lay in going to verdict and then unwinding it should I become convinced that the Defendants were entitled to judgment as matter oflaw."

CONCLUSION

Plaintiff asks that the Court reconsider the earlier order and reinstate the Title VII claim.

Dated:

New York, New York 7 August2015

Isl
Gregory Antollino, Esq.
12

SA047

-

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT

Melissa Zarda, co-independent executors of the estate of Donald Zarda, William Allen Moore,Jr, co-independent executor of the estate of Donald Zarda,
Plaintiffs · Appellants, v.
Altitude Express,lnc, doing business as Skydive Long Island, Ray Maynard,
Defendants · Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

APPELLEES' BRIEF

SAUL D. ZABELL, ESQ.
ATTORNEY FOR DEFENDANTS·APPELLEES
1 CORPORATE DRIVE, SUITE 103 BOHEMIA, NY 11716 (631) 589·7242
SZABELL@LABORLAWSNY.COM

June 15, 2016

SA048

RULE 26.1 STATEMENT Pursuant Rule 26.1 of the Federal Rules of Appellate Procedure and to enable Judges of this Court to evaluate possible disqualification or recusal, the undersigned counsel for Defendants states as follows: Defendant Altitude Express, Inc., d/b/a Skydive Long Island, is a domestic business corporation organized and existing under the laws of the State of New York. Defendant Altitude Express, Inc., d/b/a Skydive Long Island is not a governmental entity, there are no parent corporations, nor does any publicly held corporation hold 10% of its stock.
Digitally signed by Saul D. Zabell Date: 2016.06.28 12:29:11
By:~~~~-·_"·"_···--~04-'00·' ~~~~~~~~~
Saul D. Zabell (SZ 2738)
SA049

TABLE OF CONTENTS 1. TABLE OFAUTHORITIES............................................................iii I. JURISDICTIONAL STATEMENT .................................................. 1 II. STATEMENT OF ISSUES .............................................................. 1 III. STATEMENT OF THE CASE..................................................... 3 IV. STATEMENT OF FACTS RELEVANT TO THE APPEAL ...... 4
Summary Judgement ................................................................... 5 Joint Pre-Trial Order ................................................................... 5 Trial .............................................................................................. 7 Relevant Workplace History ...................................................... 11 2010 Customer Complaint ......................................................... 12
V. SUMMARY OF ARGUMENT ........................................................ 16
A. Sexual Orientation Discrimination is not a Prohibited Basis for Actionable Discrimination under Title VII .............................. 16
B. Judicial Deference to Administrative Decisions is not Mandatory ................................................................................ 17 1. Skidmore Deference ............................................................. 17 2. Chevron Deference ................................................................ 18
C. The Second Circuit Decision in Simonton Remains Undisturbed ................................................................................................... 19
D. The EEOC has not Displaced Simonton .................................. 21
ii
SA050

E. Any Putative Claim for Sexual Orientation Discrimination Arising Under Title VII Fails as a Matter of Law ................... 26 1. Disparate Treatment ............................................................ 26 2. There Exists No Inference of Impermissible Discrimination....................................................................... 28 3. Appellees had a Legitimate, Non-Discriminatory Reason for Zarda's Discharge.................................................................. 31
F. Appellees did not Engage in a Trial by "Ambush" .................. 33 1. Wayne Burrell ...................................................................... 34 2. Curt Kellinger ...................................................................... 35 3. Duncan Shaw ....................................................................... 36
VI. CONCLUSION............................................................................. 41
iii SA051

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ....................................................... 17-19, 24, 25
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ........................................................... 27, 28, 31
Rovario v. United States, 353 U.S. 53 (1957) ......................................................................... 38
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...................................................... 17, 18, 21, 24
Univ. ofTex. Sw. Med. Ctr. v. Nassar, 133 U.S. 2517 (2013) ...................................................................... 21
FEDERAL COURT CASES
United States Court of Appeals
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ................................................ 20, 26, 27
DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986) ............................................................ 20
Grady v. Affiliated Cent., Inc., 130 F.3d 553 (2d Cir.1997) ....................................................... 28-31
Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) ........................................................... 28
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ............................................. 19-21, 23, 26
iv
SA052

Sweeney v. Research Foundation ofthe State Univ. ofNY, 711 F.2d 1179 (2d Cir. 1983) ......................................................... 28
Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) ............................................................. 21
Viii. ofFreeport v. Barrella,
814 F.3d 594 (2d Cir. 2016) ........................................................... 21
United States v. Richard Baum and Joseph Scapoli, 482 F.2d 1325 (2nd Cir. 1973) ................................................. 37, 38
United States ex rel Wilkins, 326 F.2d 135 (2d Cir. 1964) ........................................................... 38
US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (2d Cir. 1969) ............................................................. 37
Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000) ............................................................. 26
Federal District Court
Burrows v. Coll ofCent. Florida, 14-CV-197, 2015 WL 5257135 (M.D.Fla. Sept. 9, 2015) ....... 22, 23
Chin v. ABN-AMRO N Am., Inc., 463 F. Supp. 2d 294 (E.D.N.Y. 2006) ............................................. 28
Christiansen v. Omnicom Grp., Inc., - F.Supp.3d--, 15-CV-3440 (KPF), 2016 WL 951581 (S.D.N.Y. Mar. 9, 2016) ............................................................ 22, 23
Cooper v. Morgenthau, 2001WL868003 (S.D.N.Y. July 31, 2001) .............................. 29-31
Crump v. T Coombs & Associates, LLC, 13-CV-707, 2015 WL 5601885 (E.D.Va. Sept. 22, 2015) ............... 21
v
SA053

Dew v. Edmunds, 15-CV-00149, 2015 WL 5886184 (D.Idaho Oct. 8, 2015) ............. 22
Hayes v. Cablevision Sys. New York City Corp., 2012 WL 1106850 (E.D.N.Y. Mar. 31, 2012) ................................. 31
Hinton v. Virginia Union University, - F. Supp.3d - - , 15-CV-569, 2016 WL 2621967 (E.D. Va. May 5, 2016) ................................................................... 25
Isaacs v. Felder Servs., LLC, 13-CV-693, 2015 WL 6560655 (M.D.Ala. Oct. 29, 2015) .......... 22-25
Iverson v. Verizon Communications, 2009 WL 3334796 (S.D.N.Y. Oct. 13, 2009) ................................... 31
La Vigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp.2d 504 (N.D.N.Y. 2010) ............................................. 40
Lopez v. City ofNew York, ll-CV-2607 (CBA) (RER), 2012 WL 2250713 (E.D.N.Y. June 15, 2012) ............................................................... 39
Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015) ............................................... 25
Videckis v. Pepperdine Univ., 100 F.Supp.3d 927, 15-CV-00298, 2015 WL 8916764 (C.D.Cal. Dec. 15, 2015) ........................................................... 22, 23
Zuffante v. Elderplan, Inc., 2004 WL 744858 (S.D.N.Y. Mar. 31, 2004) .................................... 29
vi
SA054

STATE COURT CASES
Forrest v. Jewish Guild for the Blind, 819 N.E.2d 998, 3,786 N.Y.S.2d 382, 3 N.Y.3d 295 (2004) ............ 27
Stephenson v. Hotel Employees & Rest. Employees Union Local 100 of theAFL-CIO,
6 N.Y.3d 265 (2006) ........................................................................ 26
STATUTES & REGULATIONS
New York State Human Rights Law, N.Y. Exec. Law§ 296, et seq. ("NYSHRL") ............................... 4, 26
Title VII ofthe Civil Rights Act 42 U.S.C. § 2000e, et seq. ("Title VII") ................................... passim
ADMINISTRATIVE DECISIONS
Baldwin v. Foxx, EEOC 0120133080, 2015 WL 4397641 (July 16, 2015)........... 21, 22
LEGISLATIVE MINUTES
Employment Non-Discrimination Act of1996, S. 2056, 104th Cong. (1996) ........................................................... 20
Employment Non-Discrimination Act of1995, H.R. 1863, 104th Cong. (1995) ....................................................... 20
Employment Non-Discrimination Act of1994, H.R. 4636, 103d Cong. (1994)......................................................... 20
vii
SA055

I. JURISDICTIONAL STATEMENT
Appellants, Melissa Zarda and William Allen Moore, Jr. as CoIndependent Executors of the Estate of Donald Zarda, ("Appellants") appeal from the United States District Court for the Eastern District of New York on behalf of Donald Zarda, who is deceased ("Zarda", or "Appellant"). Altitude Express d/b/a Skydive Long Island and Raymond Maynard ("Appellees", "SDLI" or "Maynard") do not contest or otherwise dispute the basis for the District Court's jurisdiction or that of the Court of Appeals.
II. STATEMENT OF ISSUES
Appellants' argue this Court should: 1. Vacate lower court's decision granting Summary Judgement on
Zarda's claim for sexual orientation discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. ("Title VII") and the District Court's subsequent denial of Zarda's motion to for reconsideration where no such claim exists under federal law.
1
SA056

2. Determine that the District Court's decision to permit the filing of a June 20, 2014 Pre-trial Order, approximately sixteen (16) months before trial, constituted reversible error based upon the inclusion of fifty-seven (57) co-workers. Although, only three (3) were called as witnesses, each individual as well as the scope of their knowledge was disclosed during discovery and discussed by Donald Zarda himself.
3. Determine that the District Court's decision: a. Allowing evidence of Zarda's first of three separate terms of employment and termination therefrom constitutes reversible error; b. Allowing evidence of Zarda's belief that his Workers' Compensation claim was a possible basis for his termination was reversible error; c. Precluding Melissa Zarda and William Moore from testifying that Zarda went on a gay cruise because he lived in an airport shack, and that he touched his teeth was reversible error;
2
SA057

d. Allowing of any evidence critical of Zarda's workplace behavior was reversible error even though it formed the basis of his termination for legitimate business reasons; and
e. Allowing the term "odd" to be used to characterize the relationship between Zarda and his expert witness, whom he met, for the first time, as a patient in an emergency room.
III. STATEMENT OF THE CASE Appellants' arguments aside, this is a straightforward dispute based on discrimination claims arising in the workplace. The central issues at hand are whether the Appellant, Donald Zarda, was in fact subject to impermissible discrimination and whether the basis for the alleged discrimination is protected under Title VII of the Civil Rights Act. The issue of sexual orientation discrimination falling outside the scope of Title VII has previously been addressed by Congress and subsequently interpreted by this Circuit. All facts forming the basis of Zarda's putative sexual orientation claim arising under Title VII have already been tried before a Jury of his peers within the context of the New York State Human Rights Law, NY EXEC. LAW §296, et seq. ("NYSHRL"). Upon the completion of a fair and proper trial, Zarda's
3
SA058

claims were ultimately determined to be unfounded. Here, should this Court determine that existing precedent has outlived both the logic and reason from which it was derived, Appellants' arguments must still be rejected by the Court because Zarda had an opportunity to present his allegations of discrimination to a jury of his peers under the corresponding state statute. This Court has consistently applied the same legal standard to claims arising under the NYSHRL as it does to claims arising under Title VII. In light of this construct and Zarda's inability to identify direct or circumstantial evidence supporting his position, his claims fail as a matter of law.
IV. STATEMENT OF FACTS RELEVANT TO THE APPEAL
Zarda began this litigation by alleging in his Amended Complaint, violations of New York State Human Rights Law, Title VII and New York State Labor Law. (JA0025·JA0040) Among those causes of action, Zarda claimed he was discharged because of a homophobic customer. (JA0025) Specifically, Zarda claimed that he had said to a customer that ''You don't have to worry about us being so close because I'm gay." (JA0029) Zarda alleged that he was terminated for "mentioning the fact that he was gay to a passenger" and that he had touched a passenger
4
SA059

inappropriately. (JA0031-JA0032) At the time the Amended Complaint was filed, Zarda was unaware of the existence of a customer complaint. (JA0033) Zarda alleged in his Amended Complaint that he was fired from his position because his "behavior did not conform to sex stereotypes." (JA0035) Summary Judgment
At summary judgment, Zarda's "gender stereotype discrimination, hostile work environment, and overtime claims" were each dismissed. Zarda's "sexual orientation discrimination claim" based upon his termination under New York State law, and minimum wage claim under New York State law were permitted. (JA0672) Zarda then moved for reconsideration of the dismissal of his gender stereotype discrimination and hostile work environment claims. (JA0021) By decision dated October 28, 2015, the District Court terminated Zarda's application for reconsideration of the Summary Judgment Decision. (SA024)1
1 In addition to the Joint Appendix and Appellants' "Special Appendix", Appellees provide supplemental documentary evidence in their "Supplemental Appendix", references to which are (SA__J.
5
SA060

Joint Pre-Trial Order Zarda raises issues regarding the disclosure of fifty-seven (57)
names contained within Appellees' witness list disclosed prior to the filing of the Pre-Trial Order. Zarda's June 5, 2014, letter motion first raised the issue of his not being aware of the names contained within Appellees' witness list and portion of the parties' Joint Pre-Trial Order. (JA0016, JA00682, JA00683) Zarda's June 5, 2014 letter motion was terminated on June 10, 2014 and Appellees were directed to include "information about the proposed defense witnesses" and that "plaintiff submit a letter to the Court by August 5, 2014, detailing any disputed objections to the designations." (See June 10, 2014 Order) (JAOOl 7) On June 20, 2014, the parties submitted a Joint Pre-trial Order (see docket number 169 on (JAOOl 7, JA0690-JA0704) which included the following language regarding the witnesses identified:
Defendants anticipate that the following witnesses will testify in person (witnesses 1·6 were deposition witnesses; witness 7 is a member of Rainbow Skydivers identified in Defendants' Rule 26 Disclosure Statement; witnesses 8·17 and 20-57 were employees from 2009-2010; and witnesses 18-19 were employees in 2001). (JA0693) Importantly, Zarda failed to file "a letter to the Court by August 5, 2014, detailing any disputed objections to the designations". Only after
6
SA061

the October 14, 2015 opening of trial, more than 14 months after being directed to do so, on October 16, 2015, Zarda filed a "Motion for Sanctions in precluding three or at least one for failure to adequately identify witnesses before trial." (JA0022, JA0731-JA0740) Although within his application, Zarda acknowledged being provided with the addresses for Shaw and Burrell during discovery, opposing counsel claimed to "have no idea who Kellinger is". This occurred despite Kellinger being identified in Zarda's document production, written Responses to Defendants' First Set of Interrogatories, the deposition of Winstock five (5) times (JA0395, JA0406, JA041 7, JA0418) (SA008) and Zarda's own deposition nine (9) separate times. (JA0108, JAOl 10, JAOlll, JA0113, JA0159, JA0162) Trial
At trial, Appellants called Ira Helfand to testify as a fact witness. (JA0940) Mr. Helfand testified that he met Zarda in an emergency room in 1998 or 1999 as his treating physician and that they stayed in touch by phone for a few months. (JA0941) He further testified that despite an interruption in their conversations that lasted for several years, he
7
SA062

visited Zarda in 2007 or 2008 for dinner and "started being in touch
again by telephone and talked from time to time." (JA0942)
Appellants then called Lauren Callanan (JA0963) who testified
that she worked at Skydive Long Island from 2005 through 2011
(JA0964). In response to questions from Appellants' counsel, the
following exchange occurred:
Q. When you go up in the sky in the plane, how would you describe the atmosphere before you are about to jump with the parachute?
A. Every single jump is different, so every experience is different.
Q. Would you characterize some as goofy? A. At times. Q. Would you characterize some as childlike? A. Sometimes. Q. Would you characterize some as boring? A. Sure
Q. Would you characterize some as loose sexually?
A. Not necessarily, but I think to an extreme maybe. (JA0968)
Ms. Callanan, on direct examination from Appellants' counsel
indicated she received a complaint about Zarda. Specifically, "that the
customers were very unhappy with the service and felt that the
instructor made inappropriate comments." (JA0976, JA0977) She
further testified that the complainant relayed that the "skydive was
8
SA063

ruined and her first experience was not what she wished it would have been because of her instructor." (JA0978)
Appellants also called Mr. Winstock and on direct examination, he testified that he had learned that a customer had made a complaint about Zarda. (JA1071, JA1074) He further testified that he had advised tandem jump passengers that he was married and had children. (JA1075) This was done for purposes calming them down and "giving them a little bit of security knowing you have a reason to make this work." (JA1076) On cross examination, Winstock testified that Zarda was introduced to him as "Gay Don" prior to his employment with Appellees (JA1081 and JA1082) and that he introduced himself as "Gay Don". (JA1082) Winstock also testified that there is no reason for an extended touching of a tandem student's hips. (JA1082 & 1083) Winstock testified that the complaint against Zarda came from a husband "and it had to do with an inappropriate touching of the passenger and possible comments." (JA1084) He further testified that Zarda explained to him that he "preferred to actually take male passengers as opposed to female passengers." (JA1087) Winstock
9
SA064

testified that he was Zarda's supervisor and that Zarda never made any complaints to him about the workplace. (JA1088)
Zarda testified through his deposition testimony which was read into the evidence. Zarda filed an EEOC charge indicating that "I'm not making this charge based on my sexual orientation." (SA002-SA003) Zarda testified that Winstock was his Supervisor and that he felt he could bring any of his problems to Winstock's attention. (JA1163, JA1273, JA1274) With regard to his suspension and ultimate termination, Zarda testified that he was asked "a lot of questions" about the tandem "jump with Miss Rosanna" and that he did not remember a specific jump at that time to which he was referring. (JA1164-1165, JA1330, JA1331) Zarda acknowledged that Maynard, the owner of Skydive Long Island, was "investigating what I knew about" the complaint. (JA1166) Zarda acknowledged that his colleagues referred to him as "Gay Don" and that he "wasn't offended by that." And that he was treated "like anybody else." (JAI 167)
Further, Zarda testified that his outward appearance lead people to believe that he was heterosexual and that he frequently was
10
SA065

mistaken for being straight and that such a mistake did not offend him. (JA1276-JA1277) Relevant Workplace History
Zarda opined about his 2001 termination from SkyDive Long Island, "From the best I can recall, because Ray didn't discuss it with me, it had something to do with a customer being unhappy about not being able to do flips out of the airplane, or something that they wanted me to do out of the aircraft." (JA1169, JA1310, JA1325) Zarda testified that he was rehired in 2009, and that Appellees rehired him with full knowledge of his sexuality and that he had a positive working relationship with his colleagues. (JAl 177) Zarda conceded he got along well with all of his colleagues in 2009. (JAl 174) Zarda enjoyed working at Skydive Long Island until he broke his ankle in 2009, at which point, he stopped working on July 2, 2009. (JAll 75)
In 2010, Zarda confirmed he did not have any negative interactions with any of his coworkers (JAll 78) and none of his coworkers brought up his sexuality with the intent to hurt his feelings, or to be malicious. (JA1315) Zarda testified that Ray Maynard was taking things out on him because his Workers' Compensation insurance went
11
SA066

up drastically as a result of his claim for injury (JA1312) and that being upset about the Workers' Compensation premium increasing and the complaints about were a possible basis for his termination. (JA1313, JA1314, JA1316, JA1325) 2010 Customer Complaint
Tellingly, Zarda acknowledged that Mr. Kengle had lodged a complaint against him because "He said I was getting familiar with his girlfriend" (JA1285, JA1293, JA1294, JA1329) and that he conveyed that complaint to Ray Maynard. (JA1286) Zarda admitted disclosing his sexual orientation to Orellana because he sensed his actions made her feel uncomfortable. (JA1287) Zarda conceded he did not know what Maynard's motivation was for terminating him in 2010. (JA1299)
Rosanna Orellana, the female tandem jump student who complained about Zarda's behavior, was called by Appellants to testify. She testified on direct examination that Zarda made a joke about her being strapped to another guy. "He made the joke. He said to my boyfriend, how do you feel that I'm strapped to your girlfriend or something along lines. (JA1222) Ms. Orellana testified that Zarda whispered in her ear in a sensual manner. (JA1232) On cross·
12
SA067

examination, Orellana testified that the video introduced did not capture the entirety of the jump experience. (JA1245) She testified that Zarda made her feel uncomfortable by, "whispering in my ear, so close in a sensual way. And after that he kept, you know putting his chin on my shoulder, which I found to be like, inappropriate." She compared what she experienced to what she observed of her boyfriend's jump and testified that it made her "feel uncomfortable." (JA1247) She also testified that Zarda put his hands on her legs and no other instructors behaved in such a manner. (JA1247-JA1248) Orellana testified that Zarda made her feel uncomfortable and that his behavior was inappropriate. (JA1249) Orellana testified that instead of discussing the geography of what they were hovering over under the parachute that Zarda "was talking about his personal life. I can't remember the whole conversation, but something about a break up with his, you know, significant other and how upset he was because they had broken up. That's - - that was the main conversation during that period of time. (JA1253) After the jump, Orellana discussed what transpired with her boyfriend who had also jumped and they compared their respective experiences. At which point, Orellana expressed disappointment in her
13
SA068

jump experience. (JA1255-JA1256) On re-direct, Orellana testified that she expected Zarda "to do his job and talk about what he is supposed to talk about, which is the surrounding area." I'm not really, you know, a therapist, so if he wanted to talk about his personal life and his personal problems in his life, he should find a more appropriate time to talk about it, not while we are free falling with my life in his hands." (JA1262-JA1263)
David Kengle testified on direct examination that he complained to Maynard about Zarda's behavior with his girlfriend Orellana. (JA1405-JA1406, JA1410) Kengle testified, "I don't remember exactly the conversation that we had. I made a complaint based on what I felt was inappropriate and the story that my girlfriend Rosanna gave me at the time. Exactly what I told him, I don't remember the details, but he did refer to his personal life, referenced his personal life in some capacity. I felt that added inappropriateness, and that was my complaint." (JA1407) Kengle went on to explain that he complained about Zarda acting inappropriately in that he was flirtatious with Orellana, kept his hands on her hips, or thigh area throughout the jump, and was gesturing to his mouth. (JA1410-JA1412)
14
SA069

On direct examination by Appellants' counsel, Maynard testified that Zarda made him aware of his sexual orientation at the time of his first hiring in 2001. (JA1466). Maynard testified that he received a complaint about Zarda from Kengle. (JA1476) and that complaint included touching that made her feel uncomfortable (JA1478) and discussions between Zarda and Orellana that occurred during the fall from the plane. (JA1482, JA1543) Maynard testified that after he received the complaint, he started his investigation. (JA1544) As part of his investigation, Maynard asked Zarda questions about the jump which, upon reflection, he did not remember. He also testified that Zarda had a history of customer complaints and was spoken to twice before about these issues. (JA1482) After Maynard viewed the videotape of the jump, its content corroborated Kengle's complaint. (JA1482, JA1545)
Wayne Burrell testified that he was employed at Skydive Long Island for twenty-four (24) years as an instructor, and that he had worked with Zarda. (JA1514) Burrell testified that he observed Zarda "being a little unprofessional, rude not talking to them, not being
15
SA070

friendly" with female jumpers (JA1515 & JA1516) and that he had mentioned his observations to Maynard. (JA1516)
Duncan Shaw testified that he worked at Skydive Long Island for fifteen (15) years (JA1575) and that he worked with Zarda. (JA1576) He testified that Zarda introduced himself to others as, "Gay Don"(JA1577, JA1586) and frequently discussed his sexual orientation in front of coworkers and at times, went into detail about his relationships. (JA1577, JAI 578-JAl 580)
Curt Kellinger testified that he had worked at Skydive Long Island since 1992, up until a couple of years before his 2015 testimony. (JA1626) Kellinger knew Zarda and was instrumental in his hire at Skydive. (JA1627-JA1628) Kellinger testified that Zarda disclosed his sexual orientation to him at their first meeting. (JA1628, JA1629)
V. SUMMARY OF ARGUMENT
A. Sexual Orientation Discrimination is not a Prohibited Basis for Actionable Discrimination under Title VIL
While we offer no commentary on whether justice, equity, or morality should dictate otherwise, binding Second Circuit precedent confirms the Trial Judge properly refused to credit, or acknowledge any cause of action for sexual orientation discrimination arising under Title
16
SA071

VIL Notwithstanding recent societal inertia and the resultant effect upon administrative agencies, at present, there exists no such relief under Title VIL Nothing contained within Appellants' brief, or for that matter, any of the corresponding amicus briefs is sufficient to effectuate such change. B. Judicial Deference to Administrative Decisions is not Mandatory
Appellants, not surprisingly, place great weight upon what they believe to be this Court's obligation to defer to the decisions of administrative agencies. However, in actuality, counsel's reliance upon the two seminal Supreme Court cases governing this practice is misplaced when, like here, Congressional intent is clear and unambiguous. Neither the Skidmore, nor the Chevron decision permits this Court to find in the law, protection for sexual orientation discrimination at a federal level, when Congressional intent indicates otherwise.
1. Skidmore Deference This was an FLSA case involving unpaid overtime compensation. The Supreme Court held that "the rulings, interpretations and opinions of the Administrator under this Act" are not controlling, but they
17
SA072

"constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134 (1944).
The Court will evaluate an agency's decision in a case based on: 1. the thoroughness evident in its consideration; 2. the validity of its reasoning; 3. its consistency with earlier and later pronouncements; and 4. all those factors which give it power to persuade, if lacking
power to control. Id. This is a less deferential standard compared to that found in Chevron. 2. Chevron Deference This case involved the construction of the term "stationary source" in an EPA regulation. The Supreme Court articulated a two-step test stating: "First. always. is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear. that is the end of the matter; for the court. as well as the agency. must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute ... Rather, if the statute is silent or
18
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ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.SA., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (emphasis added).
Therefore, if Congress has already made a determination on an issue, the Court will defer to the intent of Congress. However, in a situation where Congress has not spoken on an issue, the Court should not attempt to construe the statute. Instead the Court should defer to the agency interpretation because the individuals in the agency are experts in that subject area and have more experience.
Here, as set forth below, Congressional intent is clear and Appellants' reliance upon Chevron in practical effect, bolsters Appellees' position. C. The Second Circuit Decision in Simonton Remains Undisturbed.
In Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), the Second Circuit unequivocally held that "Title VII does not proscribe discrimination because of sexual orientation." Id. at 36. In reaching this conclusion, it cited "Congress's rejection, on numerous occasions, of bills that would have extended Title VII's protection to people based on their
19
SA074

sexual preferences." Id. at 35 (citing, e.g., Employment NonDiscrimination Act of 1996, S. 2056, 104th Cong. (1996); Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995); and the Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994)).
Based on the Second Circuit's interpretation of Title VII in Simonton, Judge Bianco properly held that Appellants could not bring a claim under Title VII for discrimination based on sexual orientation. See Dawson v. Bumble & Bumble, 398 F.3d 211, 217-18 (2d Cir. 2005) ("[T]o the extent that [the plaintiff] is alleging discrimination based upon her lesbianism, [the plaintiff] cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.").
The Simonton Court additionally looked to the other protected classifications under Title VII, reasoning that when read alongside the categories of race, color, religion, or nationality, "sex" could logically only refer to a class "delineated by gender, rather than sexual activity regardless of gender." Id. (quoting DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306-07 (2d Cir. 1986)).
20
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D. The EEOC has not Displaced Simonton. Appellants argue, in sum and substance, that, even if Simonton is
settled law, the decision was displaced by a July, 2015 EEOC ruling that Title VII protects against discrimination based on sexual orientation. (relying on Baldwin v. Foxx, EEOC DOC 0120133080, 2015 WL 4397641, at *1 (July 16, 2015)).
Appellants' position is incorrect. Binding Second Circuit precedent does not support a wider expansion or interpretation of Baldwin, (a federal sector case); certainly not one which would move this Court away from the well·reasoned decision in Simonton.
EEOC interpretations of Title VII are entitled to Skidmore deference at most-that is, "deference to the extent [that they have] the power to persuade." Viii. ofFreeport v. Barrella, 814 F.3d 594, 619 (2d Cir. 2016) (relying on Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 53 (2d Cir. 2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar, - U.S.--, 133 S.Ct. 2517, 2533 (2013)); Crump v. T Coombs & Associates, LLC, 13·CV·707, 2015 WL 5601885, at *24 n. 12 (E.D.Va. Sept. 22, 2015) (EEOC guidance given deference only to the extent that it has power to persuade).
21
SA076

The district courts that have decided Title VII claims in the wake of Foxx have also given the EEOC's interpretation of Title VII deference to the extent that the EEOC's decision is persuasive. E.g., Christiansen v. Omnicom Grp:, Inc., No. 15 CIV. 3440 (KPF), - F.Supp.3d - - , - , 2016 WL 951581, at *15 (S.D.N.Y. Mar. 9, 2016); Videckis v. Pepperdine Univ., No. CV-15-00298 (DDP) (JCX), - F.Supp.3d - - , - - , 2015 WL 8916764, at *8 (C.D.Cal. Dec. 15, 2015); Isaacs v. Felder Servs., LLC, 13-CV-0693 (MHT), -F.Supp.3d - - , - - - - - , 2015 WL 6560655, at *3-4 (M.D.Ala. Oct. 29, 2015); Dew v. Edmunds, No. 1:15-CV-00149 (CWD), 2015 WL 5886184, at *9 (D. Idaho Oct. 8, 2015); Burrows v. Coll. of Cent. Florida, 14-CV-197 (PRL), 2015 WL 5257135, at *2 (M.D.Fla. Sept. 9, 2015).
District courts have, however, split on whether to follow the EEOC or to follow the law of their regional circuits and their own districts. Christiansen and Burrows noted that the EEOC's decision was entitled to deference to the extent that it was persuasive, but found that the decision could not displace the explicit holdings of their regional circuit court (in the case of Christiansen) or of their own district (in the case of Burrows). Christiansen, - F.Supp.3d at --, 2016 WL
22
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951581, at *15; Burrows, 2015 WL 5257135, at *2. As the Christiansen
court noted: (1) the conduct before it was "reprehensible"; (2) "[t]he broader legal landscape has undergone significant changes" toward increased protection against sexual orientation discrimination in recent years; and (3) current rules recognizing Title VII discrimination claims based on sexual stereotyping but barring claims based on sexual orientation discrimination are incoherent. Christiansen, -- F.Supp.3d
at - - - - - , 2016 WL 951581, at *13--15. However. that court still concluded that that. under binding Second Circuit precedent. it could not adopt the EEOC's position.
By contrast, Isaacs and Videckis adopted the EEOC's position without addressing governing precedent from the regional circuit or their own district. Isaacs, - F.Supp.3d at - - - - - , 2015 WL 6560655, at *3-4; Videckis, - F.Supp.3d at - - , 2015 WL 8916764, at *8.
Appellants latch onto the aforementioned decision in Isaacs, package it with the Baldwin holding, and present it to this Court as a cogent means by which to overturn Simonton. Logical syllogism aside, this strategy is patently ineffectual.
23
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Appellants' counsel states that a court has already found Baldwin to be persuasive. (See Appellant's Brief, 39) "These cases pre-date Baldwin and now apply with greater force. The EEOC is entitled to deference under Chevron, as the agency charged with enforcing Title VII, or insofar as it is able to persuade. Skidmore, 323 U.S. 140 (1944). Baldwin is persuasive, and at least one court has already so found. Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis 146663 at *8-9 (M.D. Ala. Oct 29, 2015)."
While the court in Isaacs, a case originating out of the Middle Distract of Alabama, discussed Baldwin, and in the course of doing so, stated it was "compelling", the court ultimately held that "this claim fails for the same reason Isaacs's other discrimination claims fail: He has offered no direct or circumstantial evidence to suggest that the decision of Felder Services to fire him was based on his sexual orientation." Isaacs v. Felder Servs., LLC, 2015 U.S. Dist. Lexis 146663 at *4 (M.D. Ala. Oct 29, 2015). As set forth in the proceeding section of this brief, Appellants' putative claim of sexual orientation discrimination arising under Title VII is also fatally flawed for the same
24
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reasons. Plainly, the Isaacs decision does not alter the calculus of this dispute.
Although curiously absent from Appellants' brief, we would be remiss not to point out that in one notable case, The Eastern District of New York adopted the EEOC's position, notwithstanding explicit Second Circuit law to the contrary. See Roberts v. United Parcel Serv., Inc., 115 F.Supp.3d 344 (E.D.N.Y. 2015) (surveying the federal and local sea-change in attitudes towards sexual orientation discrimination). However, the logic in Roberts has been disputed because a district court simply cannot change the law of the regional circuit. Hinton v. Virginia Union University, 2016 WL 2621967 at *5, (E.D.Va. May 5, 2016). This decision weighs on the present dispute to the extent Appellant asks this Court to change the law of the Second Circuit despite the existence of black letter statutory language to the contrary.
Appellants advance, in support of their arguments, decisions where courts have adopted the EEOC's position. However, the scope and reach of Title VII properly lies within the exclusive purview of the Legislative branch. Since Congressional intent is clearly articulated, the two (2) step analysis in Chevron is not applicable and the sound
25
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reasoning behind the Simonton decision remains the guiding principle by which this case is governed.
Absent amendment, Title VII, as written, does not encompass sexual orientation discrimination claims. The EEOC's Baldwin decision is at best, persuasive authority; its application is inherently limited. Appellants cannot state a claim for discrimination under Title VII and the Trial Judge did not commit reversible error by failing to allow such a claim to proceed. E. Any Putative Claim for Sexual Orientation Discrimination Arising
Under Title VII Fails as a Matter of Law 1. Disparate Treatment While not presently actionable under Title VII, claims of sexual orientation discrimination are actionable under the New York State Human Rights Law. Stephenson v. Hotel Employees & Rest. Employees Union Local 100 of the AFL-CIO, 6 N.Y.3d 265, 271 (2006); Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir. 2005). Importantly, and for purposes of the pending appeal, courts analyze claims under the NYSHRL using the same standards that apply to federal civil rights statutes such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Weinstock v. Columbia
26
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Univ., 224 F.3d 33, 42 & n. 1 (2d Cir. 2000); see also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n. 3, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004).
The question of whether such claims are viable is determined by the familiar McDonnell Douglas burden shifting analysis used for Title VII claims. Id.; Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir. 2005); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To meet this burden, Plaintiff must demonstrate that "(1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class." Id. If the Plaintiff does so, "a presumption of discrimination arises and the burden. shifts to the Defendant to proffer some legitimate, nondiscriminatory reason for the adverse decision or action." Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). If the Defendant does so, "the presumption of discrimination created by the prima facie case drops out of the analysis, and the Defendant will be entitled to summary judgment unless the
27
SA082

Plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. (internal quotations and citations omitted). In analyzing the Defendant's business decision, courts must refrain from second-guessing a business's decision making process. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) see, e.g., Sweeney v. Research Foundation of the State Univ. ofNY., 711 F.2d 1179, 1187 n. 11 (2d Cir. 1983).
2. There Exists No Inference of Impermissible Discrimination At trial, Appellants failed to meet their burden under the McDonnell Douglas analysis, because a jury of Zarda's peers determined that he failed to establish that he was terminated under circumstances which give rise to an inference of impermissible discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Certain factors "strongly suggest that invidious discrimination [is] unlikely. For example, where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997); Chin v. ABN-AMRO N Am., Inc., 463
28
SA083

F. Supp. 2d 294, 304 (E.D.N.Y. 2006); Zuffante v. Elderplan, Inc., 2004 WL 744858, at *6 (S.D.N.Y. Mar. 31, 2004). Invidious discrimination is especially unlikely when the termination "occurred a short time after the hiring." Id. at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) ("The 'underlying rationale for the [same actor] inference is simple: it is suspect to claim that the same manager who hired a person in the protected class would suddenly develop an aversion to members of that class."').
Here, Maynard hired Zarda on three (3) separate occasions: 2001, 2009 and 2010. (JA0107, JA0108, JA0112, JA0113, JA0339, JA0342). Each time Maynard invited Zarda to work at SDLI, Maynard had full knowledge of his sexual orientation because Zarda was openly gay. (JA0107, JA0109, JA0113, JA0334, JA0397, JA0418). Maynard was aware of Zarda's sexual orientation yet continued to bring him back to SDLI to work. Additionally, Maynard was the person who decided to fire Zarda. (JA0107, JA0108, JA0112, JA0113, JA0148, JA0339, JA0342, JA0371). Given that Maynard decided to hire Zarda, with full knowledge of his sexual orientation, and subsequently decided to fire him, there can be no inference of discrimination. Grady, 130 F.3d at
29
SA084

560. It is illogical to suggest, as Appellants now do, that Maynard would re-hire Zarda, knowing his sexual orientation, if he had any aversion to homosexuals. See Cooper, 2001 WL 868003, at *6. Additionally, Zarda was terminated within two (2) years of his hire date - he was hired late in 2008 and terminated in June 2010. (JA0108, JA0109, JA0148, JA0371, JA0337). The short period between his hire date and his termination creates a strong inference that Zarda was not subjected to invidious discrimination. Grady, 130 F.3d at 560; see Cooper v. Morgenthau, 2001 WL 868003, at *6 (S.D.N.Y. July 31, 2001) (holding the inference of no discriminatory animus due when plaintiff was hired and fired by the same person "should be accorded substantial weight where the time period between the hiring and firing is less than two years."). Moreover, Zarda was suspended and terminated in the immediate wake of a customer complaint. (JA0102, JA0103, JA0346). Again, the close proximity between the complaint about Zarda's conduct and his termination indicate that he was terminated based solely on his inability to satisfy a customer. The jury properly found that Zarda was not fired under circumstances giving rise to an inference of
30
SA085

impermissible discrimination. Grady, 130 F.3d at 560; Cooper, 2001 WL 868003, at *6.
3. Appellees had a Legitimate, Non-Discriminatory Reason for Zarda's Discharge.
Even if, assuming, arguendo, Zarda could somehow demonstrate that he was terminated under circumstances which give rise to an inference of discrimination, Appellees had a legitimate, non· discriminatory reason for the termination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Zarda's termination was a result of a customer complaint regarding his behavior. (JA0152, JA0136, JA0154, JA0150, JA0164).
A customer complaint is a legitimate business reason for termination. See Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y. Oct. 13, 2009) (holding plaintiff was terminated for legitimate business reasons because plaintiff had poor performance and received multiple customer complaints); Hayes v. Cablevision Sys. New York City Corp., 2012 WL 1106850, at *15 (E.D.N.Y. Mar. 31, 2012) (holding customer complaints and written reprimands were sufficient to show a legitimate business reason for plaintiffs termination). SDLI is first and foremost a customer service
31
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business, in which the highest priority is customer safety and the second is ensuring an enjoyable experience. (JA0128, JA0129, JA0323). On June 18, 2010, Zarda was unable to provide a customer with an enjoyable experience. (JA0144, JA0476, JA0489). Instead, Kengle and Orellana were placed in an uncomfortable position because Zarda put his hands on Orellana's hips, rested his chin on her shoulder, and in the course of doing so, disclosed intimate details of his personal life. (JA0476, JA0486, JA0489, JA0454, JA0464, JA0465). As a result, Orellana and Kengle had a dissatisfactory experience and called SDLI to lodge a complaint. (JA0345, JA0456, JA0457). This alone is the reason Zarda was terminated. (JA0103, JA0148, JA0152, JA0136, JA0154, JA0150, JA0164, JA0371). In terminating Zarda, Maynard made a business decision to eliminate an employee who failed to provide the customer with one of the core goals of skydiving - an enjoyable experience. This decision was based on SDLl's desire to please its customer base, not Zarda's sexual orientation. Zarda himself conceded that the customer complaint regarding his behavior was unrelated to his sexual orientation. (JA0183). Appellants cannot rebut this fact. In addition, Zarda was the only instructor Maynard had ever received
32
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complaints about in his twenty (20) years at SDLI, Maynard properly responded to the complaint with immediate and unbiased corrective action. (JA0317, JA0318, JA0375). Parenthetically, this was not the first incidence in which a customer complained about Zarda during a jump; he received a prior customer complaint in 2001. (JA0108, JA0147, JA0148, JA0165). In terminating Zarda, Maynard simply eliminated an employee who, on at least two (2) separate occasions, failed to provide satisfactory customer service. Therefore, Zarda was terminated for a legitimate, non-discriminatory reason and the jury properly dismissed his claim for sexual orientation discrimination.
F. Appellees did not Engage in Trial by "Ambush''.
To the extent Appellants suggest the inclusion of a certain number of witnesses in the parties' proposed Joint Pre-Trial Order, dated June 20, 2014, constitutes "trial by ambush," such a theory is nullified by the objective, factual record. Appellants claim Appellees' counsel was, for all intents and purposes, motivated by a nefarious agenda by including fifty-seven (57) potential witnesses in their portion of the proposed Joint Pre-Trial Order.
33
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First and foremost, there exists no threshold number of witnesses, the inclusion of which would presumptively violate any local or federal rule. Appellees respectfully maintain that in a case such as the one at bar, its actions were, at all times, eminently reasonable. Appellees' proposed witnesses were each Zarda's former co-workers during his three (3) separate tenures at SDLI. Since skydiving is weather dependent, jumpers are migratory by nature. (JA0027, JA0049, JA0081, JA0165) As demonstrated during the pre-trial process, jumper availability was difficult to manage. This fact necessitated the inclusion of each of Zarda's former co-workers. (JA0682-JA0688)
Tellingly, while the Joint Pre-Trial Order was filed with the Court on June 20, 2014, and Jury Trial commenced on October 13, 2015, the names of the three (3) witnesses which form the basis of Appellees' position were disclosed several years earlier. (SAOOS, SA021, SA022, SA023)
Specifically, the names of the following witnesses appeared in documents exchanged by the parties at the corresponding dates below:
1. Wayne Burrell: Zarda served his response to Appellees' First Set of Interrogatories on April 7, 2011. Appellees' second interrogatory
34
SA089

required Zarda to identify "all individuals employed by Defendant who partook in purported banter or conversation with Defendant's customers and/or clients as described in ~18 of Plaintiffs Complaint." To which, Zarda responded by providing an extensive list of names, including a "Wayne Burrell." Appellees' request did not inquire about Wayne Burrell specifically. His name did not appear in the interrogatory. Instead, Zarda first identified Mr. Burrell as possessing information related to this action by providing his name in direct response to a legitimate discovery demand. Again, this discovery response was served several years before the ultimate trial. 2. Curt Kellinger: Appellants similarly claim a lack of knowledge about Mr. Kellinger. However, Appellants' counsel produced a response to Appellees' First Request for the Production of Documents on February 1, 2011 which included, amongst other items, documents referencing Curt Kellinger. Specifically, Zarda produced an e-mail chain reflecting a conversation between he and Curt Kellinger via Facebook. (SA022, SA023) On April 7, 2011, Zarda produced a response to Appellees' First Set of
35
SA090

Interrogatories, in which Curt Kellinger was identified as possessing information relevant to this matter. Additionally, Curt Kellinger's name was referenced prominently during the depositions of Richard Winstock and Zarda. Specifically, Mr. Kellinger was referenced no fewer than five (5) separate times during Winstock's deposition and no fewer than nine (9) separate times during Zarda's deposition. (JA0395, JA0406, JA0417, JA0418, JA0108, JAOllO, JAOlll, JA0113, JA0159, JA0162) Tellingly, Richard Winstock was the first to introduce Curt Kellinger's name in his deposition testimony, rather than counsel for Appellees. (JA0395) Similarly, Zarda was the first to introduce Mr. Kellinger, or "Curt," in his own testimony without being prompted to do so by counsel. (JA0108) 3. Duncan Shaw: Appellants' allegations regarding Duncan Shaw are wholly inaccurate as Mr. Shaw was referenced more frequently than any of the three (3) witnesses upon which opposing counsel relies in support of his argument. Zarda first introduced Mr. Shaw's name in response to Appellees' First Request for the Production of Documents on February 1, 2011.
36
SA091

(SA021) Zarda, yet again, provided Duncan Shaw's name in response to Appellees' First Set of Interrogatories on April 7, 2011. In addition, Duncan Shaw was referenced in four (4) separate depositions. (JA0402, JA0320, JA0336, JA0348, JA0441) Tellingly, Zarda referenced Duncan Shaw during his deposition on no fewer than twenty (20) separate occasions. (JA0108, JAOllO, JAOlll, JA0161, JA0162, JA0166, JAOl 74, JAOl 75)
Despite the foregoing, Appellants insist they were somehow "ambushed at trial" by the inclusion of these witnesses and that such action constitutes reversible error. In support of his position, counsel relies upon the decisions in US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (1969) and US v. Richard Baum and Joseph Scapoli, 482 F.2d 1325, 1331 (2nd Cir., 1973). However, the relatively aged and highly contextualized cases upon which Appellants rely are insufficient to support any finding that Appellees, in any manner, "ambushed" Appellants.
Specifically, US v. Charles Kelly and Raymond Imp, 420 F.2d 26 (2d Cir. 1969) is a criminal case involving two New York City detectives conspiring to traffic drugs. The trial took place in 1968 at which time
37
SA092

there was a new "neutron activation" technique to demonstrate that the drugs all came from the same batch. The Defendants objected to the neutron activation evidence as well as the government expert who discussed the technique in his testimony. A new trial is granted so the defense has the opportunity to attempt the technique. This is distinguishable because the new trial was connected to the scientific process in question and not the witness.
Further, United States v. Richard Baum and Joseph Scapol1; 482 F.2d 1325, 1331 (2nd Cir. 1973) is a criminal case involving criminal possession of radios. The Defendants/Appellants claimed prejudice based on the evidence provided by the government's final witness, Greenhalgh, to prove Baum's knowledge that the radios were stolen. The Court found "no reason for non-disclosure was advanced by the government. Greenhalgh's testimony was crucial to the prosecution; it was equally crucial to the defense. Cf. Rovario v. United States, 353 U.S. 53, 60 (1957); United States ex rel. Wilkins, 326 F.2d 135, 140 (2d Cir. 1964). The court held a new trial was required to afford Defendant Baum a fair opportunity to meet the critical and damaging proof of an offense not presented against him in the indictment. The government
38
SA093

failed to disclose the identity of the witness but did not justify a reason for non-disclosure. The case has no practical application to the present dispute.
Appellees respectfully submit more recent decisions which center upon a party's failure to disclose the identity of trial witnesses are far more relevant that those upon which Appellants rely.
For example, in Lopez v. City ofNew York, No. ll-CV-2607 (CBA) (RER), 2012 WL 2250713 (E.D.N.Y. June 15, 2012), Plaintiffs moved to preclude Defendants from offering at trial any witnesses not specifically disclosed to date. The Court granted the Order and the Defendants moved the Court to reconsider the motion. The Court stated, "[W]hat Rule 37 clearly prohibits, however, is for Defendants to knowingly fail to disclose percipient witnesses in violation of their obligations under Rule 26(a) and (e)(l), and then seek to have those witnesses testify at trial." The goal of the Rules is "to avoid surprise or trial by ambush." The Court also considers prejudice to Defendants. The Court held that there is no prejudice or harm to Defendants and upholding the previously granted Order. Here, as set forth above, Zarda himself either disclosed and/or testified as to the identity and relevance of each
39
SA094

trial witness 1n question. In light of such facts, there can be no "ambush".
Further, in La Vigna v. State Farm Mut. Auto. Ins. Co., 736 F. Supp. 2d 504, 511 (N.D.N.Y. 2010), Plaintiff sued her former employer after termination. The employee argued Defendant should be precluded from relying on her supervisor's affidavit because Defendant violated Rule 26 and initially failed to identify him "as an individual likely to have discoverable information." The Court pointed out that Plaintiff, in a situation like here, "had full awareness of [his] role and involvement in the events at issue here."
Plainly, the frequency with which Messrs. Shaw, Kellinger and Burrell appeared during the discovery period, particularly since Appellant himself disclosed their names and identified them as possessing relevant information, nullifies any claim that Appellees attempted to conduct a "trial by ambush." We respectfully submit this Court should disregard any argument to the contrary.
40
SA095

VII. CONCLUSION

For all the foregoing reasons, Appellees respectfully request this

Court deny Appellants' appeal in its entirety because 1) there does not

exist a cognizable claim for sexual orientation discrimination under

Title VII and 2) because there was no reversible error at trial.

Dated:

Bohemia, New York

June 15, 2016

ZABELL & ASSOCIATES, P.C.

Counselfor.Appellees

By:

~
":&'·~ :"1!'..!'£

Digitally signed by Saul D. Zabell Date: 2016.06.28 12:29:32 -04'00'

Saul D. Zabell

One Corporate Drive, Suite 103

Bohemia, NY 11716

(631) 589-7242

(631) 563-7475

szabell@laborlawsny.com

41
SA096

 
 15-3775-CV
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MELISSA ZARDA AND DONALD MOORE AS INDEPENDENT CO-EXECUTORS OF THE ESTATE OF DONALD ZARDA,
PLAINTIFFS-APPELLANTS, v.
ALTITUDE EXPRESS D/B/A SKYDIVE LONG ISLAND AND RAYMOND MANYARD, DEFENDANTS-APPELLEES.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
____________________________________________________
EN BANC BRIEF OF CHRISTIAN LEGAL SOCIETY AND NATIONAL ASSOCIATION OF EVANGELICALS AS AMICI CURIAE IN SUPPORT OF
DEFENDANTS-APPELLEES AND AFFIRMANCE
Kimberlee Wood Colby Counsel of Record
Center for Law & Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 302 Springfield, VA 22151 (703) 894-1087 kcolby@clsnet.org
Attorney for Amici Curiae

CORPORATE DISCLOSURE STATEMENT Amici curiae Christian Legal Society (“CLS”) and National Association of Evangelicals (“NAE”) have no parent corporations, do not have shareholders, and do not issue stock.
i

TABLE OF CONTENTS
Corporate Disclosure Statement .................................................................................i Table of Contents ...................................................................................................... ii Table of Authorities ..................................................................................................iv Identity of the Amici Curiae, Interest in the Case, and Source of
Authority to File ..............................................................................................1 Statement of Issues.....................................................................................................3 Summary of the Argument.........................................................................................3 Argument.................................................................................................................... 5 I. THIS COURT SHOULD BE SLOW TO OVERRULE EXTENSIVE
PRECEDENT IN THIS LONG-SETTLED AREA. .......................................5 II. REVERSAL WILL REQUIRE EXTENSIVE VIOLENCE TO
PRECEDENT. ...............................................................................................10 A. This Court has previously rejected the “associational” argument
for extending liability under Title VII to discrimination based on sexual orientation. ..........................................................................12 B. This Court has previously held that the repeated Congressional rejections of proposals to extend liability under Title VII to reach discrimination based on sexual orientation is “strong evidence” that Title VII does not currently create such liability.. ......13 C. This Court has previously held that a theory of nonconformance with sex stereotypes cannot be used to “bootstrap” Title VII liability for discrimination based on sexual orientation. ........................................................................................... 15 D. Oncale did not open an interpretive pathway to extend Title VII to reach sexual orientation...................................................................16
ii

III. THERE IS NO DRIVING NEED TO ENGAGE IN THE SWEEPING OVERTURNING OF PRECEDENT THAT REVERSAL WOULD REQUIRE. .....................................................................................................17 A. The democratic process is resulting in statutes that extend nondiscrimination protection to sexual orientation.............................17 B. Market forces are resulting in policies that extend nondiscrimination protection to sexual orientation.............................18 C. “Uniformity” is not itself an appropriate goal within our federal system. .................................................................................................20
IV. THIS CASE DOES NOT PRESENT, AND THE COURT SHOULD BE CAREFUL NOT TO ADDRESS, QUESTIONS CONCERNING THE BOUNDARIES BETWEEN STATUTORY RIGHTS OF HOMOSEXUAL INDIVIDUALS AND CONSTITUTIONAL RIGHTS OF FREE EXERCISE, FREEDOM OF EXPRESSION, AND FREEDOM OF ASSOCIATION OF RELIGIOUS INDIVIDUALS AND ORGANIZATIONS..................................................21
Conclusion ...............................................................................................................25 Certificate of Compliance…………………………………………………………27 Certificate of Service…...…………………………………………………………28
iii

Cases

TABLE OF AUTHORITIES

Page(s)

Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015)........................................................................................20

Board of Educ. v. Mergens, 496 U.S. 226 (1990).......................................................................................... 1-2

Burwell v. Hobby Lobby Stores, Inc., 135 S. Ct. 2751 (2014)........................................................................................23

Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2nd Cir. 2017) .............................................................................16

Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005) ................................................................. 11, 16-18

DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986) ......................................................................... 12-13

Evans v. Georgia Reg. Hosp., 850 F.3d 1248 (11th Cir. 2017) ..........................................................................11

Fratello v. Archdiocese of New York et al., 2017 WL 2989706 (2nd Cir., July 14, 2017)......................................................23

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)..............................................................................................11

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999).................................................................................6

Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc) .......................................................passim

Holcomb v. Iona Coll., 521 F.3d 130 (2nd Cir. 2008) .............................................................................12

iv

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012)............................................................................................23
Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978)............................................................................................15
Loving v. Virginia, 388 U.S. 1 (1967)................................................................................................12
Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Comm’n, 370 F.3d 272 (Colo. App. 2015), cert. denied, 2016 WL 1645027 (Colo. 2016), cert. granted, 2017 WL 2722428 (U.S. June 26, 2017) (No. 16-111) .............................................................................................23
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........................................................................................21
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) .................................................................................10, 11, 16
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)......................................................................................10, 15
Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000) ........................................................................passim
Straights and Gays for Equality v. Osseo Area Sch. No. 279, 540 F.3d 911 (8th Cir. 2008) ................................................................................2
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ............................................................................14
Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034 (7th Cir. 2017) ..............................................................................9
v

Statutes and Regulations Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e et seq. ......................passim Conn. Gen Stat. §46a-81c ........................................................................................17 Education Amendments of 1972, Title IX, 20 U.S.C. §§1681-1688 ........................8 Employment Non-Discrimination Act, S. 815, 113th Cong. (2013) ..................14, 22 Equal Access Act of 1984, 20 U.S.C. §§ 4071-74 ....................................................1 New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ......................17 Pregnancy Discrimination Act of 1978, 42 U.S.C. §2000(e)(k) ...............................8 Vt. Stat. Ann. tit. 21, §495 .......................................................................................17 34 C.F.R. §106.33 ......................................................................................................9 34 C.F.R. §106.41(a)..................................................................................................9 34 C.F.R. §106.41(b) .................................................................................................9 Other Authorities 128 Cong. Rec. 11784-85 (1982)...............................................................................1 Carl Esbeck, Federal Contractors, Title VII, and LGBT Employment
Discrimination: Can Religious Organizations Continue to Staff on a Religious Basis?, 4 Oxford J. of Law & Religion 368 (2015) ...................22 Movement Advancement Project, http://www.lgbtmap.org/equalitymaps/non_discrimination_ordinances/policies ..................................................17 Brad Sears & Christy Mallory, Economic Motives for Adopting LGBT-Related Workplace Policies, The Williams Institute, 2 (Oct. 2011), https://tinyurl.com/yd5g6sha.......................................................19
vi

This brief amicus curiae is respectfully submitted in support of Defendants-Appellees, and the sustaining of the judgment of the district court, and the decision of the panel of this Court dated April 18, 2017.
IDENTITY OF THE AMICI CURIAE, INTEREST IN THE CASE, AND SOURCE OF AUTHORITY TO FILE1
This brief is submitted on behalf of amici curiae Christian Legal Society and National Association of Evangelicals.
Christian Legal Society is an association of Christian attorneys, law professors, and law students dedicated to the defense of religious freedom. From its inception, members of CLS have fought to preserve religious organizations’ autonomy from the government and to protect the free exercise and free speech rights of all citizens. For example, CLS was instrumental in passage of the federal Equal Access Act of 1984, 20 U.S.C. §§ 4071-74, that protects the right of both religious and LGBT student groups to meet on public secondary school campuses. See 128 Cong. Rec. 11784-85 (1982) (Senator Hatfield statement) (recognizing CLS’s role in drafting the Act). See also, e.g., Board of Educ. v. Mergens, 496 U.S.
1 A party or a party’s counsel did not author this brief in whole or in part and did not contribute money that was intended to fund preparing or submitting this brief. No person—other than the amici curiae, their members, or their counsel— contributed money that was intended to fund preparing or submitting this brief. This brief is filed pursuant to the Court’s Order of May 25, 2017, “invit[ing] amicus curiae briefs from interested parties.”
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226 (1990) (Act protects religious student groups’ meetings); Straights and Gays for Equality v. Osseo Area Sch. No. 279, 540 F.3d 911 (8th Cir. 2008) (Act protects LGBT student groups’ meetings).
The National Association of Evangelicals is the largest network of evangelical churches, denominations, colleges, and independent ministries in the United States. It serves 40 member denominations, as well as numerous evangelical associations, missions, nonprofits, colleges, seminaries, and independent churches. NAE serves as the collective voice of evangelical churches, their religious ministries, and separately-organized evangelical ministries. It believes that religious liberty is a God-given right recognized in and protected by the First Amendment and other federal laws and that church-state separation is one of our nation’s constitutional restraints on government designed to safeguard the autonomy of religious organizations. NAE believes that civil government has a high duty to not just protect but also to promote the religious freedom of peoples of all faiths.
In recent years, new “nondiscrimination” statutes, as well as new interpretations of existing statutes and regulations, have sometimes been applied in a manner that restricts or threatens the ability of individuals and institutions to live and speak in a manner consistent with the teachings of their religions concerning marriage, sexual relationships, and the sanctity of human life, and to choose with
2

whom to associate for those purposes. Because of the central importance of free exercise of religion, free speech, and freedom of association to all other liberties, amici have a strong interest in the maintenance of these freedoms, when threatened by any state mandates whatsoever, and in avoiding conflicts between state mandates and these individual liberties whenever possible. Amici are concerned that while issues of free exercise of religion, free speech, and freedom of association are not facially implicated by the present case, a decision of this Court inconsistent with long-standing precedent will quickly create large numbers of such conflicts.
STATEMENT OF ISSUES Pursuant to this Court’s Order of May 25, 2017, the issue to be considered is: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?”
SUMMARY OF THE ARGUMENT The Court should be slow to overturn precedent where what is demanded is clearly an innovation over long-established law, where constitutional rights are not at issue, where ample remedies for the alleged wrong exist under the statutory law of every state in this Circuit, and where the complexities and competing priorities that would be raised by declaration of new statutory
3

protections are of a nature that should have the benefit of legislative fact-finding, debate, and fine-tuning. (Section I)
If it reverses the panel’s decision, this Court risks serious and unnecessary harm to its credibility. Reversing the panel’s decision will require direct contradiction of multiple prior decisions of this Court on multiple distinct points. Notably, this Court has previously expressly rejected the “associational” argument for interpreting “sex” within the meaning of Title VII to include “sexual orientation;” has found that the history of Congressional consideration (and rejection) of amendments to add “sexual orientation” to the list of classes protected by Title VII is “strong evidence” that Title VII as it currently stands does not provide such protection; and has cautioned that theories of discrimination based on “sex stereotypes” cannot be “bootstrapped” to reach discrimination based on sexual orientation per se. (Section II)
There is no failure of the democratic process that could justify judicial intervention and innovation at the expense of so many precedents, given that state and municipal legislatures have, in fact, been acting to extend anti-discrimination protection to include sexual orientation, while—according to an amicus brief submitted by a number of corporations—market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law. (Section III)
4

Finally, creating a federal remedy under Title VII for discrimination based on sexual orientation will inevitably give rise to a whole new class of conflicts between First Amendment rights and this new statutory right. When extending such rights, legislatures have often sought to minimize such conflicts by means of carefully crafted religious exemptions, and courts have found it necessary to create such exemptions when legislatures have failed to do so. Because the present case does not involve any claims of First Amendment rights, it does not illuminate the conflicts that the creation of new statutory rights will trigger, nor can it equip the Court to mark out the boundaries of the exemptions that may be necessary to protect First Amendment rights. Accordingly, if the Court does declare new rights under Title VII in this case, it should do so with the utmost caution, closely confining its holding to the facts presented, while carefully noting that the free exercise and other First Amendment rights of individuals must be and will be protected when conflicts arise. (Section IV)
ARGUMENT I. THIS COURT SHOULD BE SLOW TO OVERRULE EXTENSIVE
PRECEDENT IN THIS LONG-SETTLED AREA. To read the briefs of Appellant and supporting amici, one would think
that this case presents a question of profound constitutional rights and of injustice without remedy. The reality is far less dramatic.
5

The case presents no question concerning the scope or nature of the constitutional rights of the Appellant; it presents no opportunity to recognize, reject, or define any such rights. Instead, it concerns only statutory construction and the availability of a particular federal civil remedy, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. What this Court said in Simonton in 2000 remains true here: “We are called upon here to construe a statute . . . not to make a moral judgment.” Simonton v. Runyon, 232 F.3d 33, 35 (2nd Cir. 2000), quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999).
Nor does the case present the equitable tug of a wrong without a remedy; if Appellant was discriminated against on the basis of his sexual orientation, his estate had a remedy under the express terms of New York employment discrimination law. (Infra p. 17 n.6.)
This case does, however, present a problem of judicial credibility. Reversal en banc would require not merely reversing the result below, but flatly contradicting the repeated legal and logical conclusions of multiple panels of this Court spanning three decades, with little more to justify the switch than say-so. In a day of steadily increasing politicization of courts and judicial appointments, and steadily increasing cynicism that judicial decisions are anything more than another mechanism of power politics, such a blatant about-face on so many conclusions
6

would be institutionally damaging. Amici respectfully submit that such a wholesale rejection of precedent should not be countenanced absent grave necessity and urgency—which do not exist here.
No one seriously contends that, when enacting Title VII, Congress intended Title VII to provide a federal remedy for discrimination based on sexual orientation. Instead, the position of Appellant and his amici is a rather frank request that this Court make new law. When the Seventh Circuit took just this step in the Hively case earlier this year, Judge Posner was doing no more than stating the simple truth—a truth apparent on the face of the majority opinion—when he wrote in his concurrence that “we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 357 (7th Cir. 2017) (en banc) (Posner, J., concurring).
It would be fruitless for amici to wade into philosophical debates concerning the merits of textualism, originalism, or a “living constitution” (or in this case “living statutes”) or concerning the boundaries of legitimate judicial power and innovation. For better or worse, too few minds remain open to persuasion on those questions. But regardless of where one comes down on those large questions of judicial philosophy, it cannot be healthy for the judiciary to
7

permit itself to be reduced to—and seen as—a mere tell-tale for the prevailing cultural winds, at the expense of the rule of law.
Judicial innovation should be approached with all the more caution in a complex area that cries out for the benefit of the legislative process, which includes fact-gathering, weighing of innumerable competing considerations, input from diverse perspectives, and an ability to compromise and fine-tune to an extent which the case-specific judicial process cannot approach. For example, given the unique medical issues associated with pregnancy, Congress acted only after more than a decade of experience under Title VII to add an express prohibition on discrimination based on pregnancy, subject to a “bona fide occupational qualification” exception.2 This deliberate legislative care was appropriate when deciding how the law should interact with one of the most foundational facts of gender—the fact that only women become pregnant.
Because of the biological differences between the sexes, the term “sex” appears in many places in federal law and, in particular, within Title IX of the Education Amendments of 1972, 20 U.S.C. §§1681-1688, and implementing regulations. This includes express provisions permitting sex-segregated living
2 See the Pregnancy Discrimination Act of 1978, 42 U.S.C. §2000e(k), amending Title VII of the Civil Rights Act of 1964, and §703(e)(1) of the Civil Rights Act of 1964, defining the “bona fide occupational qualification” defense.
8

facilities (20 U.S.C. §1686) and locker rooms and restrooms at educational institutions (34 C.F.R. §106.33) to provide privacy and accommodate modesty, as well as provisions intended to encourage women’s sports teams (34 C.F.R. §106.41(a)) and expressly permitting sex-segregated teams (34 C.F.R. §106.41(b)) to serve social goals, such as developing leadership and competitiveness among young women that might be disrupted by forcing admission of biological males to women’s teams, whatever their own perceived gender identity might be. In short, attempting to divorce the word “sex” from “physiological sex” in the Civil Rights Act of 1964 will instantly create a wide range of practical and interpretive problems and, in fact, a definition stretched to include “sexual orientation” or “gender identity” almost certainly cannot be followed consistently within this body of law. This is a logical “tell” that the interpretation of “sex” that Appellant urges cannot be correct within the statutory framework, regardless of how social mores and perceptions of sexuality may have changed since 1964. Again, the conclusion is that this is an area that requires legislative deliberation, not a quick judicial “fix.”
Finally, the one circuit that has extended Title VII to reach sexual orientation has rapidly extended it further to reach “gender identity,” see Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034 (7th Cir. 2017), and we would caution that gender identity brings new complexities to the table because (for some
9

individuals at least) it is mutable over time and perhaps even by choice, unlike race, national origin, and biological sex (in the most basic sense of the presence or absence of a Y chromosome in each cell of an individual’s body). How the existing body of law under Title VII can and should interact with a mutable characteristic is a novel question, and again one that deserves all the fact-finding, debate, and perhaps compromise of the legislative process.
II. REVERSAL WILL REQUIRE EXTENSIVE VIOLENCE TO PRECEDENT. To rule for the Appellant here is not merely a matter of reversing the
panel decision. Instead, reversal would require rather remarkable and visible violence to 30 years of repeated and consistent precedent from this Court itself. It would be all too clear that as a matter of policy choice, this Court now prefers a different result, and is willing to run roughshod over Congress to get there.
In Price Waterhouse v. Hopkins, a plurality of the Supreme Court noted the “simple” declaration of Title VII, plain “on the face of the statute,” that “gender must be irrelevant to employment decisions.” Price Waterhouse, 490 U.S. 228, 239-40 (1989) (plurality op.). In Oncale v. Sundowner Offshore Servs., Inc., nine years later, Justice Scalia, writing for the majority, quoted Justice Ginsburg to emphasize that Title VII is concerned, as its “text indicates, [with] whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523
10

U.S. 75, 80 (1998), quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). Three years after Oncale, and just 17 years ago, this Court held that “[t]he law is well-settled in this Circuit and in all others to have reached the question that Simonton has no cause of action under Title VII because Title VII does not prohibit harassment or discrimination because of sexual orientation.” Simonton, 232 F.3d at 35. Respondents and amici now ask this Court to stretch far beyond the “simple” “face of the statute” to reach the diametrically opposite conclusion.
Courts have repeatedly, over almost 30 years, catalogued the many prior decisions of this Court and other circuit and district courts around the nation that have concluded that the text of Title VII cannot be read to reach discrimination based on sexual orientation.3 Amici will not duplicate that catalog. Instead, we wish to call the Court’s attention to the more specific fact that multiple distinct arguments for including “sexual orientation” as a subheading of “sex” have been specifically considered and rejected by this Court in its prior decisions. For this
3 See Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2nd Cir. 2005) (cataloging decisions of district courts in the Second Circuit holding that Title VII does not provide a remedy for discrimination based on sexual orientation); Hively, 853 F.3d at 341-42 (collecting cases from multiple Circuits that reach this conclusion); Evans v. Georgia Reg. Hosp., 850 F.3d 1248, 1256-57 (11th Cir. 2017) (cataloging nine such decisions spanning the years from 1989 through 2006).
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Court now to reverse all these reasoned decisions by all these panels of Second Circuit jurists would require a striking lack of respect for even the recent past and would suggest that in this Circuit the law, like the clothing on Fifth Avenue, changes with the latest fashion.
A. This Court has previously rejected the “associational” argument for extending liability under Title VII to discrimination based on sexual orientation. Appellant and several amici seek to analogize to Loving v. Virginia,
388 U.S. 1 (1967), and to Holcomb v. Iona Coll., 521 F.3d 130 (2nd Cir. 2008), to argue that discrimination based on sexual orientation should fall within the reach of Title VII under a theory of “associational discrimination.” But the theory does not fit the conclusion that is urged; an individual’s sexual orientation may or may not be reflected in any actual relationship (“association”) at any relevant time—or ever. Loving, as well as the cited cases under Title VII, involved discrimination based on actual relationships with an individual of a particular race. It would be a large stretch from these precedents to a new rule barring discrimination based on merely hypothetical relationships, and it would be highly undesirable to create a situation under which a court would have to enquire whether the plaintiff actually was in—and the defendant actually knew about—a relationship with an individual of the same sex. As this Court observed in DeCintio, “Appellees’ proffered interpretation . . . would involve the EEOC and federal courts in the policing of
12

intimate relationships.” DeCintio v. Westchester County Med. Ctr., 807 F.2d 304,
308 (2d Cir. 1986). Indeed, the “associational” argument seeks to apply Title VII
based on the plaintiff’s conduct (association), rather than his or her status—a
change of focus that fits poorly with the nature of the other categories protected by
Title VII. See id. at 306 (“the other categories . . . refer to a person’s status as a
member of a particular race, color, religion or nationality.”)
To the immediate point, the attempt to extend Title VII to reach
sexual orientation by means of an “associational” argument is an approach that this
Court directly rejected in DeCintio, where it wrote:
The meaning of “sex,” for Title VII purposes, thereby would be expanded to include “sexual liaisons” and “sexual attractions.” Such an overbroad definition is wholly unwarranted. . . . “Sex,” when read in this context, logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender. . . . The proscribed differentiation under Title VII, therefore, must be a distinction based on a person’s sex, not on his or her sexual affiliations.
Id. at 306-307.
B. This Court has previously held that the repeated Congressional rejections of proposals to extend liability under Title VII to reach discrimination based on sexual orientation is “strong evidence” that Title VII does not currently create such liability. Congress has spent a great deal of time over almost 40 years
considering and debating—but has never yet adopted—proposed amendments to
Title VII that would have added “sexual orientation” to the list of grounds of
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discrimination prohibited by that law.4 The Seventh Circuit recently dismissed this history as irrelevant, declaring that “we have no idea what inference to draw from congressional inaction or later enactments.” Hively, 853 F.3d at 344. The arguments made by the Hively en banc panel to reach this conclusion would categorically exclude consideration of subsequent Congressional actions from the process of statutory interpretation. That represents a remarkably facile break with long-standing interpretative practice. In any case, this Court has declared a precisely opposite conclusion on this very point with respect to this exact statute, noting, in Simonton, “Congress’s rejection, on numerous occasions, of bills that would have extended Title VII’s protection to people based on their sexual preferences” and concluding that this history is not merely evidence, but “strong evidence” of Congressional intent (thus far) not to include sexual orientation within the categories of discrimination actionable under Title VII. Simonton, 232 F.3d at 35 (emphasis added).
4 See Simonton, 232 F.3d at 35, and Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085-86 (7th Cir. 1984), citing numerous such instances from 1975 through 1996. Congressional consideration of the so-called “Employment NonDiscrimination Act” (“ENDA”), which would add sexual orientation to the categories protected by Title VII, has continued thereafter, with ENDA being passed by the Senate in 2013, but not by the House. S. 815, 113th Cong. (2013).
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C. This Court has previously held that a theory of non-conformance with sex stereotypes cannot be used to “bootstrap” Title VII liability for discrimination based on sexual orientation.
Appellant argues that Price Waterhouse opened the door for his claim
because the plurality opinion in that case—which did not consider issues of sexual
orientation—stated that discrimination based on “sex” may include discrimination
based on failure to conform to sex stereotypes. 5 Appellant and several amici assert
that it is a “stereotype” that individuals are attracted to members of the opposite
sex. (App. Br. 34; see also Brief of Amicus ACLU et al. at 18 ff.)
This Court has repeatedly considered and rejected exactly this line of
argument, stating in 2000 that, even if Title VII liability can be found based on
failure to conform to gender stereotypes, “this theory would not bootstrap
protection for sexual orientation into Title VII because not all homosexual men are
5 The plurality opinion in Price Waterhouse made a step from Title VII precedent that condemned discrimination “resulting from gender stereotypes” concerning women’s “inability to perform certain kinds of work,” Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 (1978), to bring within Title VII’s reach an employer’s decisions influenced by an employee’s failure to conform in a manner evident in the workplace to gender stereotypes (e.g., dress, aggressiveness, use of profane language). See Price Waterhouse, 490 U.S. at 251252. The plaintiff in Price Waterhouse did not claim to be a lesbian. It would be a different and longer step to stretch this precedent to reach allegations of discrimination based on sexual orientation per se, which, as this Court has previously noted, does not necessarily correlate to any non-conformity with gender stereotypes visible in the workplace. See Simonton, 232 F.3d at 38 (“not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine”).
15

stereotypically feminine, and not all heterosexual men are stereotypically masculine.” Simonton, 232 F.3d at 38. In 2005, this Court concluded once again that “[l]ike other courts, we have . . . recognized that a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” Dawson, 398 F.3d at 218. Just this year, a panel of this Court once again reaffirmed the teaching of Simonton and Dawson that “being gay, lesbian, or bisexual, alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.” Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 201 (2nd Cir. 2017).
D. Oncale did not open an interpretive pathway to extend Title VII to reach sexual orientation. Appellant and several amici argue that Oncale declared interpretive
principles that open a door to read sexual orientation as a protected category under Title VII. Once again, however, this Court has previously considered and directly rejected this argument: “We . . . do not see how Oncale changes our well-settled precedent that ‘sex’ refers to membership in a class delineated by gender. The critical issue, as stated in Oncale, ‘is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Simonton, 232 F.3d at 36, quoting Oncale, 523 U.S. at 80. Indeed, it is ironic that Appellant should invoke Oncale’s emphasis on the primacy of the statutory text, while simultaneously attempting to persuade this Court to
16

treat that text as a mere vehicle for judicial will by assigning indisputably new
meaning to the words of that text.
III. THERE IS NO DRIVING NEED TO ENGAGE IN THE SWEEPING OVERTURNING OF PRECEDENT THAT REVERSAL WOULD REQUIRE. Courts and academics have often argued that judicial innovation may
be justified where the democratic mechanisms of government seem stuck, unable
to make progress to protect minority rights; however, it is implausible to argue that
such a situation exists here. For those who believe that sexual orientation should
define a protected class on a par with race or biological sex, there is every sign that
rapid progress is being made through both democratic and market mechanisms—
and perhaps a synergy between the two.
A. The democratic process is resulting in statutes that extend nondiscrimination protection to sexual orientation. All states in this Circuit provide civil remedies for discrimination
based on sexual orientation, through statutes duly enacted through the democratic process.6 Moreover, various city and county ordinances prohibit employment
6 New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“[C]laims of sexual orientation discrimination are actionable under the NYSHRL.” Dawson, 398 F.3d at 224); Conn. Gen Stat. §46a-81c; Vt. Stat. Ann. tit. 21, §495. See Movement Advancement Project, http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances/policies (last visited July 24, 2017) (click on “City and County Listing,” then scroll down to “Connecticut,” “New York,” or “Vermont.” All three entries show “100% of
17

discrimination by private employers on the basis of sexual orientation and gender identity. In this Circuit, there is no such discrimination without a remedy.
Further, these statutes are explicit, a situation far healthier than “discovering” such remedies in a 50-year-old statute by means of interpretive legerdemain. Against this record of state and municipal legislative action, for federal courts now to impose on Title VII “a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted,” Hively, 853 F.3d at 357 (Posner, J., concurring), would be an unjustified exercise in federal “me-too-ism,” driven by an apparent sense—at odds with our federal structure—that the federal government must provide a legal remedy for every wrong.
B. Market forces are resulting in policies that extend nondiscrimination protection to sexual orientation. The En Banc Brief of 50 Employers and Organizations, filed June 26,
2017 (the “Corporations Brief”), while purporting to support reversal, is in fact a compendium of evidence and argument that market forces are punishing any existing discrimination based on sexual orientation, rapidly driving it from the
population protected” for “sexual orientation” and for “gender identity.”). The modest difference in evidentiary standard discerned by the panel below (Slip Op. at 6-7)—a difference not discerned by this Court in Dawson, 398 F.3d at 224 (“the question of whether such claims can survive summary judgment is determined by the same analysis as for Title VII claims”)—scarcely rises to the level of a basic denial of a remedy.
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marketplace. According to this submission, “[r]ecent studies confirm that companies with LGBT-inclusive workplaces have better financial outcomes” (Corp. Br. at 6), while “[o]ne study . . . concluded that businesses in one state ‘risk[ed] losing $8,800 on average for each LGBT employee that leaves the state or changes jobs because of the negative environment.’” (Corp. Br. at 13). If these assertions are even directionally true, then Darwinian selection will strongly pressure companies to avoid discrimination based on sexual orientation. And indeed, the Corporations Brief—both by its list of 50 signatories and by a study it cites and submits—confirms that a wide sweep of corporate America has adopted such policies. According to an advocacy paper from 2011 relied on by the Corporations Brief, already by that date “[a]ll but two of the top 50 Fortune 500 companies include sexual orientation in their non-discrimination policies,” while “81% [42] of the top 50 federal contractors include sexual orientation in their nondiscrimination policies.”7 There is little doubt that the percentages would be higher today, six years later.
7 See Brad Sears & Christy Mallory, Economic Motives for Adopting LGBTRelated Workplace Policies, The Williams Institute, 2 (Oct. 2011), available at http://tinyurl.com/yd5g6sha (last visited July 25, 2017).
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C. “Uniformity” is not itself an appropriate goal within our federal system. Perhaps recognizing that the widespread adoption of laws against
discrimination based on sexual orientation weakens their plea for federal judicial intervention, the Corporations complain that a diverse “patchwork” of state legislation in this area is inefficient, creating an “artificial barrier that restricts the free flow of resources, ideas, and capital.” (Corp. Br. at 15-16.)
This argument, however, would apply with equal force to the interaction between individual values or preferences and any important policy differences among states, including policies relating to tax rates, education, gun control, investment in parks and infrastructure, and much more. But this type of diversity is inherent in a federal system and, indeed, legal diversity is essential to the function of the states as “laboratories for devising solutions to difficult legal problems.” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015); and see cases cited therein. An assertion that some citizens may prefer to live under the policies of one state more than another cannot justify disregarding our federal legal structure, nor shutting down the flexible diversity of those “legal laboratories.”
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IV. THIS CASE DOES NOT PRESENT, AND THE COURT SHOULD BE CAREFUL NOT TO ADDRESS, QUESTIONS CONCERNING THE BOUNDARIES BETWEEN STATUTORY RIGHTS OF HOMOSEXUAL INDIVIDUALS AND CONSTITUTIONAL RIGHTS OF FREE EXERCISE, FREEDOM OF EXPRESSION, AND FREEDOM OF ASSOCIATION OF RELIGIOUS INDIVIDUALS AND ORGANIZATIONS. It is no news that progressive sexual mores have given rise to complex
clashes with the beliefs and goals of those who wish to teach—consistent with all
traditional Western religions and their texts—that the only moral context for sexual
relations is the male-female union in marriage for purposes of procreation and the
raising of their biological children. And there is no doubt that individuals and at
least certain types of institutions have the right to hold, teach, and live according to
such views, and to associate together for the purpose of doing those things.8 But it
is equally certain that ascertaining the boundary lines of these rights of free
expression, free exercise of religion, and freedom of association is a challenging
task.
8 “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015).
21

In order to respect and protect those rights, legislators have had to
give careful consideration and, in some cases, craft exceptions to otherwise
generally applicable laws—or courts have had to intervene to require such
exceptions. As is well known, Title VII itself contains two separate exemptions for
religious organizations.9 Similarly, the version of the Employment Non-
Discrimination Act passed by the Democratic Senate in 2013 included a robust
religious exemption that not only reiterated the existing Title VII exemption of
“religious employers”, but also declared that:
A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency.
S. 815, §6(b), 113th Cong. (2013).
And, of course, in addition to the Title VII religious exemptions, the
courts have repeatedly intervened to protect the First Amendment rights of
religious schools to hire (and fire) teachers free of the restraints of, and
9 See Title VII §§ 702(a) and 703(e)(2), codified at 42 U.S.C. § 2000e-1 and § 2000e-2. For a review of the text and history of the religious exemptions of Title VII, see Carl Esbeck, Federal Contractors, Title VII, and LGBT Employment Discrimination: Can Religious Organizations Continue to Staff on a Religious Basis?, 4 Oxford J. of Law & Religion 368, 375-80 (2015).
22

government intermeddling under cover of, Title VII or other federal nondiscrimination laws, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012) (the First Amendment precludes schoolteacher’s disability claim against religious school under the federal Americans with Disabilities Act); Fratello v. Archdiocese of New York et al., 2017 WL 2989706 (2nd Cir., July 14, 2017) (First Amendment precludes assertion of sex discrimination claim under Title VII by headmaster of Catholic school), and the right of a corporation not to participate—even indirectly—in the funding of abortion-inducing drugs when its owners hold a religious conviction that abortion is a form of infanticide, see Burwell v. Hobby Lobby Stores, Inc., 135 S. Ct. 2751 (2014). In June of this year, the Supreme Court granted certiorari in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 370 P.3d 272 (Colo. App. 2015), cert. denied, 2016 WL 1645027 (Colo. 2016), cert. granted, 2017 WL 2722428 (U.S. June 26, 2017) (No. 16-111), which raises further and fraught issues at the intersection of anti-discrimination law and freedom of speech and free exercise.
The present point is that these intersections of claims of rights are complicated and difficult and, while the extension of Title VII to include sexual orientation (with gender identity likely to follow) would certainly create new such conflicts, these issues are neither raised nor illuminated by the facts of the present
23

case, in which no party asserts any claim of faith conviction concerning homosexual conduct, nor any desire to advocate, exemplify, or live according to any set of conscientious beliefs inconsistent with homosexual conduct.
Precisely because such issues and potential rights and conflicts are not brought into focus by the present facts, if this Court does decide to upend 50 years of evolved precedent to declare new law and expand the reach of Title VII in this case, the Court is at particular risk of declaring those new rights under the statute in terms which later may prove inconsistent with the free exercise and free speech rights of other individuals and organizations.
Accordingly, if this en banc panel does declare new law in this area for this Circuit, amici respectfully urge that judicial prudence dictates that it should do so cautiously, in terms closely tied to the facts presented, leaving wider implications for future development informed by other specific facts. Further, it should make very explicit that its holding in this case can and does say nothing about the constitutional rights of religious individuals and organizations when broadened statutory rights under Title VII are asserted in apparent conflict with those constitutional rights.
In Hively, the Seventh Circuit made a brief nod in this direction, but we are obliged to note that in the process the Seventh Circuit summarized the religious exemption of Title VII in a way that has been obsolete for 45 years,
24

stating that “Ivy Tech did not contend . . . that it was a religious institution and the positions it denied to Hively related to a religious mission.” Hively, 853 F.3d at 351 (emphasis added). This articulation matches the §702(a) exemption to Title VII as it stood from 1964 until it was amended in 1972, but not since. Instead, for the last 45 years, §702(a) has exempted religious institutions with respect to the employment of individuals “to perform work connected with the carrying on . . . of its activities,” omitting the limitation of the exemption to “religious” activities.
CONCLUSION For the foregoing reasons, amici curiae Christian Legal Society and National Association of Evangelicals request that this Court sustain the holding of the panel decision that Title VII does not provide a remedy for allegations of discrimination based on sexual orientation standing alone.
25

Date: July 26, 2017

Respectfully submitted,
/s/ Kimberlee Wood Colby
Kimberlee Wood Colby Counsel of Record
Center for Law and Religious Freedom Christian Legal Society 8001 Braddock Road Springfield, VA 22151 (703) 894-1087 kcolby@clsnet.org
Attorney for Amici Curiae

26

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitations of Fed. R. App.
P. 29(a)(5) and 32(a)(7)(B), and L.R. 29.1(c) and 32.1(a)(4), because it contains 5,903 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14point Times New Roman.
/s/ Kimberlee Wood Colby Kimberlee Wood Colby Date: July 26, 2017
27

CERTIFICATE OF SERVICE The undersigned certifies that on July 26, 2017, she electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the Court’s CM/ECF system. The undersigned certifies that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Date: July 26, 2017

/s/ Kimberlee Wood Colby Kimberlee Wood Colby

28

 
 15-3775
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MELISSA ZARDA and WILLIAM ALLEN MOORE, JR., co-independent executors of the estate of Donald Zarda,
Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND; and RAY MAYNARD,
Defendants-Appellees.
On Appeal from the United States District Court for the Eastern District of New York
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
CHAD A. READLER TOM WHEELER
Acting Assistant Attorneys General HASHIM M. MOOPPAN
Deputy Assistant Attorney General CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys U.S. Department of Justice 950 Pennsylvania Avenue N.W. Washington, D.C. 20530 (202) 514-1633

TABLE OF CONTENTS
Page(s)
INTRODUCTION AND INTEREST OF THE UNITED STATES ......................... 1
STATUTORY BACKGROUND........................................................................................ 2
ARGUMENT ......................................................................................................................... 4
I. TITLE VII’S BAR AGAINST DISCRIMINATION BECAUSE OF SEX IS NOT VIOLATED UNLESS MEN AND WOMEN ARE TREATED UNEQUALLY. ...................................... 4
II. DISCRIMINATION BECAUSE OF SEXUAL ORIENTATION IS NOT DISCRIMINATION BECAUSE OF SEX UNDER TITLE VII. .......................................................... 6
A. Until Recently, The Courts Of Appeals And The EEOC Had Uniformly Held That Sexual Orientation Discrimination Is Not Prohibited Sex Discrimination Under Title VII. ................................................. 6
B. Congress Has Repeatedly Ratified The Settled Understanding That Title VII Does Not Bar Sexual Orientation Discrimination. ................................................... 8
III. THE THEORIES ADVANCED BY THE EEOC AND THE SEVENTH CIRCUIT LACK MERIT, LET ALONE SUFFICIENT MERIT TO OVERCOME CONGRESS’S RATIFICATION OF THE CONTRARY INTERPRETATION. ............................................................ 15
A. “But For” The Employee’s Sex........................................................ 15
B. Per Se Sex Stereotyping..................................................................... 18
C. Associational Discrimination............................................................ 21
CONCLUSION ................................................................................................................... 23
CERTIFICATE OF COMPLIANCE i

CERTIFICATE OF SERVICE ADDENDUM
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Angle v. Veneman, EEOC Doc. 01A32644, 2004 WL 764265 (April 5, 2004) ...................................................................................... 8

Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (July 15, 2015) .............................................................................. 8, 15

Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016) ........................................................................................... 17

Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)............................................................................................... 8

Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ....................................................................................... 8, 10

Christiansen v. Omnicon Grp., Inc., 852 F.3d 195 (2d Cir. 2017)............................................................................................. 20

City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) .................................................................................................... 15, 16

Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)......................................................................................... 7, 20

DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986)............................................................................................. 10

DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979), abrogated in part on other grounds, Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864 (9th Cir. 2001)................................ 8, 10

DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979) ....................................................................................... 8, 10
Dillon v. Frank, EEOC Doc. 01900157, 1990 WL 1111074 (Feb. 14, 1990) ............................................................................. 8, 10

iii

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) ............................................................................................................ 1
Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), reh'g en banc denied (July 6, 2017) ................................. 7
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............................................................................................................ 8
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ............................................................................................................ 4
General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004) .......................................................................................................... 12
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ............................................................................................................ 3
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003), overruled by Hively v. Ivy Tech Comty. Coll., 853 F.3d 339 (7th Cir. 2017) ......................................................................................... 7, 8
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) ...................................................................................................... 14
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) .............................................................................................. 8
Hively v. Ivy Tech Comty. Coll., 853 F.3d 339 (7th Cir. 2017) ..........................................................1, 4, 15, 16, 18, 19, 21
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008).......................................................................................21, 22
Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) ......................................................................................... 17
Lorillard v. Pons, 434 U.S. 575 (1978) ............................................................................................................ 8
iv

Marucci v. Caldera, EEOC Doc. 01982644, 2000 WL 1637387 (Oct. 27, 2000) ................................................................................... 8
Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005) ......................................................................................... 7
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) .............................................................................................................. 2
Michael M. v. Superior Ct., 450 U.S. 464 (1981) ...................................................................................................... 6, 16
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ................................................................................................4, 5, 6, 14
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................................................ 5, 6, 7, 8, 11, 16, 18, 19, 20
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009)............................................................................................. 20
Ricci v. DeStefano, 557 U.S. 557 (2009) .......................................................................................................... 11
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ........................................................................................... 7, 12
Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248 (1981) ............................................................................................................ 4
Texas Dep't of Hous. & Comty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) ............................................................................................9, 10, 11
Tyler v. Marsh, EEOC Doc. 05890720, 1989 WL 1007268 (Aug. 10, 1989) ................................................................................. 10
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) ................................................................................... 10, 12
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) ............................................................................................. 7 v

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) .......................................................................................................... 11
Williamson v. A.G. Edwards & Sons, 876 F.2d 69 (8th Cir. 1989).......................................................................................... 8, 10
Wrightson v. Pizza Hut, 99 F.3d 138 (4th Cir. 1996)................................................................................................ 8
Young v. United Parcel Serv., 135 S. Ct. 1338 (2015) ........................................................................................................ 4
Statutes:
Civil Rights Act of 1964, 42 U.S.C. 2000e(b).............................................................................................................. 2 42 U.S.C. 2000e(k) ........................................................................................................ 3, 13 42 U.S.C. 2000e-2 ............................................................................................................. 11 42 U.S.C. 2000e-2(a)..................................................................................................... 2, 21 42 U.S.C. 2000e-2(a)(1) ...................................................................................................... 4 42 U.S.C. 2000e-2(k)......................................................................................................... 11 42 U.S.C. 2000e-2(m) ....................................................................................................... 11 42 U.S.C. 2000e-5(f)(1) ...................................................................................................... 1 42 U.S.C. 2000e-5(g)(2) .................................................................................................... 11 42 U.S.C. 2000e-16 ............................................................................................................. 1 42 U.S.C. 2000e-16(a)......................................................................................................... 2
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 .......................................................................... 3, 11
Civil Service Reform Act, 5 U.S.C. 2302(b)(10) ........................................................................................................... 2
Fair Housing Act, 42 U.S.C. 3601 et seq. .......................................................................................................... 9
18 U.S.C. 249(a)(2) ........................................................................................................... 2, 13
28 U.S.C. 517........................................................................................................................... 1
29 U.S.C. 705(20)(E) ............................................................................................................ 13
vi

42 U.S.C. 12211(a) ................................................................................................................ 13 42 U.S.C. 13925(b)(13)(A) ............................................................................................... 2, 13 42 U.S.C. 3716(a)(1)(C)........................................................................................................ 13 Regulations: Exec. Order 13,087 (May 29, 1998) ..................................................................................... 2 Exec. Order 13,672 (July 21, 2014) ...................................................................................... 2 5 C.F.R. 300.103(c)(2014) ...................................................................................................... 2 Rule: Fed. R. App. P. 29(a).............................................................................................................. 1 Legislative Materials: H.R. Rep. No. 102-40, pt. 2 (1991) .................................................................................... 11 137 Cong. Rec. 5261 (1991) ................................................................................................ 12 137 Cong. Rec. 6161 (1991) ................................................................................................ 12
vii

INTRODUCTION AND INTEREST OF THE UNITED STATES The United States files this amicus brief pursuant to 28 U.S.C. 517 and Federal Rule of Appellate Procedure 29(a). This case presents the question whether, under Title VII of the Civil Rights Act of 1964, the statute’s prohibitions on employment discrimination because of sex include discrimination because of sexual orientation. The United States, through the Attorney General, enforces Title VII against state or local government employers, 42 U.S.C. 2000e-5(f)(1), and the United States is also subject to Title VII in its capacity as the Nation’s largest employer. 42 U.S.C. 2000e-16. The United States thus has a substantial and unique interest in the proper interpretation of Title VII. Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, 42 U.S.C. 2000e5(f)(1), and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257-58 (1991). The United States submits that the en banc Court should reaffirm its settled precedent holding, consistent with the longstanding position of the Department of Justice, that Title VII does not reach discrimination based on sexual orientation. Unlike the recent, contrary decision in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc), this Court’s well-established position correctly reflects the plain meaning of the statute, the overwhelming weight and reasoning of the case law,

and the clear congressional ratification of that interpretation. The question presented is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulations, or employer action. In fact, Congress and the Executive Branch have prohibited such discrimination in various contexts. See, e.g., 18 U.S.C. 249(a)(2) (hate crimes); 42 U.S.C. 13925(b)(13)(A) (certain federal funding programs); Exec. Order 13,672 (July 21, 2014) (government contracting); Exec. Order 13,087 (May 29, 1998) (federal employment); 5 C.F.R. 300.103(c) (non-performancerelated treatment under the Civil Service Reform Act, 5 U.S.C. 2302(b)(10)). The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.
STATUTORY BACKGROUND Title VII of the Civil Rights Act of 1964 prohibits private employers from discriminating against an individual “because of,” among other protected traits, “such individual’s * * * sex.” 42 U.S.C. 2000e-2(a). In 1972, Congress extended that prohibition to state and local government employers, see 42 U.S.C. 2000e(b), and it also enacted a similar prohibition on discrimination against federal government employees “based on * * * sex,” 42 U.S.C. 2000e-16(a). Congress did not define the term “sex” when it enacted these antidiscrimination provisions. Indeed, “sex” was added as a protected trait in a floor amendment “at the last minute” before the House passed the 1964 bill. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986).
2

In 1978, Congress amended Title VII’s definition of “sex.” Two years earlier, the Supreme Court had held that Title VII’s prohibition on discrimination because of sex did not cover an employer’s exclusion of pregnancy from coverage under a disability-benefits plan. General Elec. Co. v. Gilbert, 429 U.S. 125, 135-40 (1976). Congress abrogated that holding in the Pregnancy Discrimination Act by specifying that Title VII’s prohibition on “sex” discrimination would be deemed to “include” discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e(k). Congress did not, however, otherwise delineate the scope of the term “sex.”
In 1991, Congress further amended Title VII. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). As detailed below, by that time, several courts of appeals had held that Title VII does not prohibit sexual orientation discrimination, and no court of appeals had held otherwise. Against the backdrop of that precedent, Congress neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination—notwithstanding that Congress amended the provisions concerning sex discrimination in other respects and overruled numerous other judicial precedents with which it disagreed. In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation. See Addendum A.
3

ARGUMENT I. TITLE VII’S BAR AGAINST DISCRIMINATION BECAUSE OF SEX IS NOT
VIOLATED UNLESS MEN AND WOMEN ARE TREATED UNEQUALLY The term “sex” is not defined in Title VII, but, as Judge Sykes observed in Hively without dispute from the majority, “[i]n common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female.” 853 F.3d at 362 (dissenting op.) (citing dictionaries). As for the term “discrimination,” the Supreme Court has held that Title VII requires a showing that an employer has treated “similarly situated employees” of different sexes unequally. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258-59 (1981). Under the paradigmatic Title VII “disparate treatment” claim, “[t]he central focus of the inquiry” is whether the employer has treated “some people less favorably than others because of their * * * sex.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 569, 577 (1978). The requisite showing is thus that “an employer intentionally treated a complainant less favorably than employees with the complainant’s qualifications but outside the complainant’s protected class.” Young v. United Parcel Serv., 135 S. Ct. 1338, 1345 (2015) (emphasis added and quotation marks omitted). Likewise, a Title VII “sexual harassment” claim may be brought, for either opposite-sex or same-sex harassment, if and only if the harassment constitutes “discriminat[ion] * * * because of * * * sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting 42 U.S.C. 2000e-2(a)(1)). Harassment is thus not
4

“automatically discrimination because of sex merely because the words used have sexual content or connotations.” Id. Instead, “[t]he critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id. (emphasis added).
So too for a claim of “sex stereotyping” under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality op.). Although an employer cannot “evaluate employees by assuming or insisting that they match[ ] the stereotype associated with their group,” “[t]he plaintiff must show that the employer actually relied on her [or his] gender in making its decision.” Id. For example, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender,” because that particular sort of “sex-based consideration[ ]” of gender stereotypes results in “disparate treatment of men and women.” Id. at 242, 250-51 (emphasis added); see also id. at 251 (“An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.”).
By contrast, Title VII does not proscribe employment practices that take account of the sex of employees but do not impose differential burdens on similarly situated members of each sex. For example, employers necessarily consider the sex of their employees when maintaining and enforcing sex-specific bathrooms, but that
5

alone does not constitute per se discriminatory treatment. Such practices do not categorically violate Title VII because they do not discriminate between members of one sex and “similarly situated” members of the opposite sex. See Michael M. v. Superior Ct., 450 U.S. 464, 469 (1981) (plurality op.). II. DISCRIMINATION BECAUSE OF SEXUAL ORIENTATION IS NOT
DISCRIMINATION BECAUSE OF SEX UNDER TITLE VII As the Courts of Appeals and the EEOC had long interpreted Title VII until recently, when Congress prohibited sex discrimination, it did not also prohibit sexual orientation discrimination. And Congress has clearly ratified that interpretation of Title VII, in repeated and varied ways. A. Until Recently, The Courts Of Appeals And The EEOC Had
Uniformly Held That Sexual Orientation Discrimination Is Not Prohibited Sex Discrimination Under Title VII As the courts have long held, discrimination based on sexual orientation does not fall within Title VII’s prohibition on sex discrimination because it does not involve “disparate treatment of men and women.” See Price Waterhouse, 490 U.S. at 251. Rather than causing similarly situated “members of one sex [to be] exposed to disadvantageous terms or conditions of employment [or employment actions] to which members of the other sex are not exposed,” see Oncale, 523 U.S. at 80, it causes differential treatment of gay and straight employees for men and women alike.
6

Accordingly, this Court has repeatedly held that “Title VII does not proscribe discrimination because of sexual orientation” “[b]ecause the term ‘sex’ in Title VII refers only to membership in a class delineated by gender.” Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000); accord Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005). In Simonton, this Court rejected the plaintiff’s argument that Oncale supports applying Title VII to sexual orientation discrimination, emphasizing that Oncale instead had reaffirmed that “[t]he critical issue * * * ‘is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Simonton, 232 F.3d at 36 (quoting Oncale, 523 U.S. at 80). Similarly, in Dawson, this Court rejected the plaintiff’s attempt to use a gender stereotyping claim under Price Waterhouse to “bootstrap protection for sexual orientation into Title VII,” emphasizing that Price Waterhouse instead had reaffirmed that the essential element is “disparate treatment of men and women.” Dawson, 398 F.3d at 218, 220-21 (quoting Price Waterhouse, 490 U.S. at 251).
Likewise, until the Seventh Circuit’s en banc decision in Hively earlier this year, the ten other Courts of Appeals to have addressed the issue had uniformly joined this Court in holding that Title VII’s prohibition on sex discrimination does not encompass sexual orientation discrimination. See, e.g., Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017), rehearing en banc denied (July 6, 2017); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d
7

1058, 1063 (7th Cir. 2003), overruled by Hively, supra; Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Wrightson v. Pizza Hut, 99 F.3d 138, 143 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, 876 F.2d 69, 70 (8th Cir. 1989); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-30 (9th Cir. 1979), abrogated in part on other grounds, Nichols v. Azteca Restaurant Enterpr., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).
The EEOC also until recently had “consistently held that discrimination based on sexual orientation is not actionable under Title VII,” including after the Supreme Court decided Price Waterhouse and Oncale. Angle v. Veneman, EEOC Doc. 01A32644, 2004 WL 764265, at *2 (April 5, 2004); accord Marucci v. Caldera, EEOC Doc. 01982644, 2000 WL 1637387, at *2-*3 (Oct. 27, 2000); Dillon v. Frank, EEOC Doc. 01900157, 1990 WL 1111074, at *3 (Feb. 14, 1990); but see Baldwin v. Foxx, EEOC Doc. 0120133080, 2015 WL 4397641 (July 15, 2015) (reversing course and holding that sexual orientation discrimination is per se sex discrimination).
B. Congress Has Repeatedly Ratified The Settled Understanding That Title VII Does Not Bar Sexual Orientation Discrimination
1. It is a well-established interpretive principle that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978); see Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998)
8

(“[T]he force of precedent here is enhanced by Congress’s amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding.”).
The Supreme Court recently applied this principle in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). The Court there observed that, when Congress in 1988 amended the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq., it “was aware of th[e] unanimous precedent” of multiple Courts of Appeals holding that the FHA authorized disparate impact claims, and “with that understanding, [Congress] made a considered judgment to retain the relevant statutory text.” Id. at 2519. The Court explained that, “[a]gainst this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language * * * is convincing support for the conclusion that Congress accepted and ratified” that understanding: “[if] a word or phrase has been * * * given a uniform interpretation by inferior courts * * *, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” Id. at 2520. Finally, the Court found further “confirmation of Congress’ understanding” in “the substance of the 1988 amendments,” which the Court believed “logical[ly] * * * presupposed” that disparate impact was available under the pre-1988 version of the FAA. Id.; but see id. at 2540-41 (Alito, J., dissenting) (describing the 1988 amendments instead as “a compromise among [three] factions”).
9

2. When Congress enacted the Civil Rights Act of 1991, supra, it ratified the settled understanding that Title VII does not bar sexual orientation discrimination. Compared to Inclusive Communities, the argument for ratification here is at least as strong, if not stronger, for four reasons.
First, Congress undoubtedly “was aware of th[e] unanimous precedent” of multiple Courts of Appeals holding that Title VII does not prohibit sexual orientation discrimination. Inclusive Communities, 135 S. Ct. at 2519. Four Courts of Appeals had already so held by 1991, and this Court had strongly so suggested. See Williamson, 876 F.2d at 70; Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984); DeSantis, 608 F.2d at 329-30; Blum, 597 F.2d at 938; see also DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 306-07 (2d Cir. 1986) (holding that sex discrimination barred by Title VII “must be a distinction based on a person’s sex, not on his or her sexual affiliations”). Notably, although a few more Courts of Appeals than that had ruled at the time of the 1988 FHA amendments, Inclusive Communities, 135 S. Ct. at 2519 (nine overall), the interpretive question there nevertheless was far more contested, because President Reagan expressly disagreed with all those courts when he signed the amendments, id. at 2540-41 (Alito, J., dissenting). By contrast, when President Bush signed the 1991 Title VII amendments, there is no indication that he disagreed with the uniform view of the Courts of Appeals—and the EEOC, see, e.g., Dillon, 1990 WL 1111074, at *3; Tyler v. Marsh, EEOC Doc. 05890720, 1989 WL 1007268, at *1 (Aug. 10, 1989)—that the statute does not reach sexual orientation discrimination.
10

Second, “[a]gainst this background understanding,” Congress “amend[ed] [Title VII] while still adhering to the operative language.” Inclusive Communities, 135 S. Ct. at 2520. Whereas Congress added new provisions that used the term “sex” in the course of setting forth methods and burdens of proof for sex discrimination claims, it neither included sexual orientation within the definition of sex nor added it as an independently protected trait. See, e.g., Pub. L. No. 102-166, §§ 105-107, 105 Stat. 1071, 1074-75 (1991) (adding subsections (k)(1)(A), (l), and (m) to 42 U.S.C. 2000e-2).
Third, further “confirmation of Congress’ understanding” exists in “the substance of the [1991] amendments.” Inclusive Communities, 135 S. Ct. at 2520. Namely, those amendments left standing the judicial decisions that had rejected Title VII’s application to sexual orientation discrimination while expressly abrogating several other Title VII decisions that Congress believed had “sharply cut back on the scope and effectiveness” of the statute. Ricci v. DeStefano, 557 U.S. 557, 624 (2009) (quoting H.R. Rep. No. 102-40, pt. 2, at 2 (1991)). For example, Congress modified the framework for disparate-impact claims in response to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), see 42 U.S.C. 2000e-2(k), and for mixed-motive claims in response to Price Waterhouse, see 42 U.S.C. 2000e-2(m), 2000e-5(g)(2). Moreover, this prompt abrogation of narrow judicial readings of Title VII followed in the footsteps of Congress’s abrogation of the 1976 Gilbert decision in the 1978 Pregnancy Discrimination Act. Supra at p. 3. In short, it is telling that Congress elected not to disturb the cases holding that Title VII does not bar sexual orientation discrimination,
11

because Congress “has not been shy in revising other judicial constructions” of Title VII that it has deemed unduly narrow. See General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 594 n.7 (2004).
Finally, the 1991 Congress also declined to enact proposed legislation that would have expressly amended Title VII to bar discrimination based on “sex, affectional or sexual orientation.” 137 Cong. Rec. 6162. As its sponsors themselves recognized, the proposed legislation was necessary because sex discrimination is different from sexual orientation discrimination and there was an “absence of Federal laws” prohibiting the latter. 137 Cong. Rec. 5261, 6161 (statements of Sen. Cranston and Rep. Weiss). In fact, Congress had rejected multiple prior efforts to enact such laws. See, e.g., Ulane, 742 F.2d at 1085 & n.11.
3. After the Civil Rights Act of 1991, Congress has continued to confirm that Title VII does not bar sexual orientation discrimination.
First, every subsequent Congress since 1991 (as well as every prior Congress going back to 1974) has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation. See Addendum A. And Congress did so even as the number of Courts of Appeals holding that Title VII does not reach such discrimination grew to a unanimous eleven. Supra at pp. 7-8. Such “congressional silence after years of judicial interpretation supports adherence to the traditional view.” Cline, 540 U.S. at 594; see also Simonton, 232 F.3d at 35 (“Although congressional inaction subsequent to the enactment of a statute is not always a helpful
12

guide,” the sheer number of unsuccessful attempts to amend the statute in the face of such a uniform body of law “is strong evidence of congressional intent.”).
Second, Congress expressly prohibited sexual orientation discrimination in several other statutes that separately prohibit sex discrimination. See, e.g., 18 U.S.C. 249(a)(2) (enhanced penalties for crimes motivated by “gender” or “sexual orientation”); 42 U.S.C. 13925(b)(13)(A) (no discrimination based on “sex” or “sexual orientation” under certain federally funded programs); see also 42 U.S.C. 3716(a)(1)(C) (federal aid to state or local investigations of crimes motivated by “gender” or “sexual orientation”). Moreover, in each of these statutes, Congress listed “sexual orientation” discrimination in addition to “sex” or “gender” discrimination, rather than deeming “sexual orientation” discrimination to be “include[d]” within “sex” discrimination, as it did for pregnancy discrimination. 42 U.S.C. 2000e(k) (emphasis added). This demonstrates both that Congress considers “sexual orientation” discrimination to be distinct from, rather than a subset of, “sex” or “gender” discrimination, and also that Congress knows how to cover “sexual orientation” discrimination separately from “sex” or “gender” discrimination when it so chooses.1
1 Conversely, Congress expressly excluded “homosexuality” from disability discrimination statutes that were passed in 1973 and 1990. See 29 U.S.C. 705(20)(E); 42 U.S.C. 12211(a). Given that each of these statutes was passed within a year of amendments to Title VII’s prohibitions on sex discrimination, supra at pp. 2-3, it is particularly implausible to interpret those prohibitions as including sexual orientation discrimination implicitly.
13

4. Accordingly, this is not a situation where “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Oncale, 523 U.S. at 79. When adopting Title VII’s ban on sex discrimination in 1964, and especially when amending it in 1991, Congress was well aware of the distinct practice of sexual orientation discrimination and chose not to ban it also.
To be sure, there have since been notable changes in societal and cultural attitudes about such discrimination, but Congress has consistently declined to amend Title VII in light of those changes, despite having been repeatedly presented with opportunities to do so. And more fundamentally, even unforeseen circumstances do not present courts with a license to “rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done” to implement a clear statute’s policy objectives. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017). Although such an “evolution * * * might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past,” the Supreme Court has resoundingly reaffirmed that “the proper role of the judiciary [is] to apply, not amend, the work of the People’s representatives.” Id. at 1725-26.
14

III. THE THEORIES ADVANCED BY THE EEOC AND THE SEVENTH CIRCUIT LACK MERIT, LET ALONE SUFFICIENT MERIT TO OVERCOME CONGRESS’S RATIFICATION OF THE CONTRARY INTERPRETATION The EEOC’s amicus brief, which is based on its decision in Baldwin, presents
three theories why sexual orientation discrimination is barred under Title VII: (1) it is necessarily sex discrimination as it would not occur “but for” the sex of the gay employee; (2) it is per se sex-stereotyping; and (3) it is gender-based associational discrimination. EEOC Br. at 4; Baldwin, 2015 WL 4397641 at *5-10. The Seventh Circuit majority in Hively largely adopted the EEOC’s theories. 853 F.3d at 343-52. These theories are inconsistent with Congress’s clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination. And even viewed solely on their own terms, none of these theories is persuasive.
A. “But For” The Employee’s Sex The EEOC and the Seventh Circuit majority contend that sexual orientation discrimination is necessarily sex discrimination because the employer allegedly flunks “‘the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.’” EEOC Br. at 6 (quoting City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)); see Hively, 853 F.3d at 345-46. For instance, they hypothesize a male employee who is discriminated against because he has a male partner, but who would not have been discriminated against if he were a woman with the same male partner, and they thus
15

conclude that such an employee would not have been discriminated against “but for” his sex. EEOC Br. at 6; Hively, 853 F.3d at 345. This analysis commits two fundamental errors in applying the “but for” test for sex discrimination.
First, as the Seventh Circuit dissent correctly observed, the but-for “comparison can’t do its job of ruling in sex discrimination as the actual reason for the employer’s decision * * * if we’re not scrupulous about holding everything constant except the plaintiff’s sex.” Hively, 853 F.3d at 366 (Sykes, J., dissenting). The EEOC and the Seventh Circuit majority fail to hold everything else constant because their hypothetical changes both the employee’s sex (from male to female) and his sexual orientation (from gay to straight). The proper comparison would be to change the employee’s sex (from male to female) but to keep the sexual orientation constant (as gay). In that hypothetical, the employer satisfies Manhart’s “simple test,” because the employee would be adversely affected regardless of sex (whether as a gay man or a gay woman).
Second, even if the EEOC and the Seventh Circuit majority were properly applying the “but for” test, that test does not establish “disparate treatment of men and women,” Price Waterhouse, 490 U.S. at 251, where an employer addresses a circumstance that “the sexes are not similarly situated,” Michael M., 450 U.S. at 469. Again, a simplistic application of the “but for” test would mean that sex-specific bathrooms are always unlawful sex discrimination, because a man would never be prohibited from using the women’s room if he were a woman (or vice versa). That,
16

of course, is not the law—an employer does not engage in sex discrimination when it accounts for a sex-based difference without treating either sex worse than the other.
Notably, outside the context of sexual orientation discrimination, other Courts of Appeals have rejected the mechanical use of the “but for” test urged by the EEOC and the Seventh Circuit majority. For example, the en banc Ninth Circuit has emphasized that it and other Circuits have “long recognized that companies may differentiate between men and women in appearance and grooming policies” so long as the policy “does not unreasonably burden one gender more than the other,” even though this means that individual employees who fail to comply with the policy’s “sex-differentiated requirements” would not have been disciplined but for their sex. Jespersen v. Harrah’s Operating Co., Inc., 444 F.3d 1104, 1109-10 (9th Cir. 2006) (en banc). Moreover, the Fourth Circuit recently held that an employer may use “physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women,” because “[a] singular focus on the ‘but for’ element * * * skirts the fundamental issue of whether those normalized requirements treat men in a different manner than women.” Bauer v. Lynch, 812 F.3d 340, 351 (4th Cir. 2016).
In sum, an employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex. Gay men and women are treated the same, and straight men and women are treated the same. Of course, if an employer fired only gay men but not gay women (or vice versa), that
17

would be prohibited by Title VII—but precisely because it would be discrimination based on sex, not sexual orientation.
B. Per Se Sex-Stereotyping The EEOC and the Seventh Circuit majority also contend that sexual orientation discrimination necessarily involves sex stereotyping because it allegedly targets an employee’s failure to conform to the gender norm of opposite-sex attraction. EEOC Br. 13; Hively, 853 F.3d at 346. For instance, they assert that lesbianism is “the ultimate case of failure to conform to the female stereotype.” EEOC Br. 13 (quoting Hively, 853 F.3d at 346). Again, this analysis commits two fundamental errors in applying the sex-stereotyping theory. First, it erroneously presumes that sexual orientation discrimination always reflects a gender-based stereotype. When bringing a sex-stereotyping claim, an employee “must show that the employer actually relied on her [or his] gender in making its decision.” Price Waterhouse, 490 U.S. at 251. What this means is that, “if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman [or man].” Id. at 250. In Price Waterhouse, for example, the “employer who act[ed] on the basis of a belief that a woman cannot be aggressive, or that she must not be, ha[d] acted on the basis of gender.” Id. But where an employer discriminates against a female employee solely because she is gay (without regard to whether, for instance, she has masculine manners or
18

clothing), it is not necessarily true that the employer has “actually relied on her gender in making its decision.” Price Waterhouse, 490 U.S. at 251. Rather, the employer may have treated homosexuality differently for reasons such as moral beliefs about sexual, marital, and familial relationships that need not be based on views about gender at all. See Hively, 853 F.3d at 370 (Sykes, J., dissenting). That may be impermissible treatment under other statutes or rules, but it is not covered by Title VII’s ban on “sex” discrimination.
Second, even if sexual orientation discrimination can sometimes or always be conceptualized as a gender-based stereotype, it is not the sort of stereotype barred by Price Waterhouse. As the Court explained, Title VII bars “sex stereotypes” insofar as that particular sort of “sex-based consideration[ ]” causes “disparate treatment of men and women.” 490 U.S. at 242, 251. There, for example, the stereotype against aggressive women treated businesswomen worse than similarly situated businessmen: “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” Id. at 251.
By contrast, the opposite-sex attraction “stereotype” relied upon by the EEOC and the Seventh Circuit majority does not result in disparate treatment of the sexes because men are treated no better or worse than similarly situated women. Indeed, treating such gender-neutral “stereotypes” as prohibited by Title VII would lead to absurd results. For example, one could just as easily, if not more easily, assert that
19

“the ultimate case of failure to conform to the female stereotype” (EEOC Br. at 13) is a woman’s failure to use the woman’s bathroom. Again, though, no one can seriously contend that Price Waterhouse outlawed sex-specific bathrooms.
That said, Title VII of course prohibits employers from applying impermissible sex stereotypes to homosexual employees. Namely, gay employees, just like straight employees, may invoke Price Waterhouse if they are subjected to gender-based stereotypes—e.g., that a particular homosexual man is too effeminate—that cause them to be treated worse than similarly situated employees of the opposite sex. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009). Critically, though, that is because such gender stereotyping truly is sex discrimination rather than sexual orientation discrimination: the same claim could be brought by a heterosexual male whom the employer likewise deemed too effeminate. See id. As this Court has emphasized, homosexual individuals “do not have less protection under Price Waterhouse against traditional gender stereotype discrimination” than do heterosexual individuals. Christiansen v. Omnicon Grp., Inc., 852 F.3d 195, 200-01 (2d Cir. 2017).2
2 As a factual matter, there sometimes may be a “difficult question” whether discriminatory treatment against a gay plaintiff “was because of his homosexuality, his effeminacy, or both.” See Prowel, 579 F.3d at 291. Nevertheless, the plaintiff may prevail if it can satisfy the burden to “marshal[ ] sufficient evidence”—e.g., through comparator employees or direct evidence of employer motive—“such that a reasonable jury could conclude that harassment or discrimination occurred” because of gender stereotypes rather than just because of sexual orientation. See id. at 292; see also, e.g., Dawson, 398 F.3d at 216-23.
20

In sum, an employer who discriminates based on sexual orientation alone does not apply the sort of sex stereotype proscribed by Price Waterhouse. Rather than a gender-based norm that causes employees of one sex to be treated worse than similarly situated employees of the other sex, sexual orientation discrimination per se applies to both sexes alike.
C. Associational Discrimination The EEOC and the Seventh Circuit majority finally contend that sexual orientation discrimination is “associational discrimination” on the basis of sex. EEOC Br. at 10; Hively, 853 F.3d at 348-49. Relying on cases addressing discrimination against interracial relationships, the EEOC and the Seventh Circuit majority reason that Title VII similarly prohibits discrimination based on the sex of those with whom an employee associates. EEOC Br. at 10; Hively, 853 F.3d at 34849. This analogy to racial discrimination is fundamentally inapposite. Title VII prohibits an employer from discriminating against an employee in an interracial relationship, not because that constitutes “associational discrimination” as such, but rather because that constitutes discrimination against the “individual [employee] * * * because of such individual’s race.” 42 U.S.C. 2000e-2(a). In particular, the employer is treating an employee of one race differently from similarly situated employees of the partner’s race, solely because the employer deems the employee’s own race to be either inferior or superior to the partner’s race. For example, in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), this Court held that a white
21

employee could bring a claim that he was treated worse for marrying a black woman, as that was discrimination “because of the employee’s own race,” especially in light of evidence that he himself was “insult[ed] * * * in public” as “a [n-word] lover.” Id. at 134, 138-40. By contrast, an employer who discriminates against an employee in a same-sex relationship is not engaged in sex-based treatment of women as inferior to similarly situated men (or vice versa), but rather is engaged in sex-neutral treatment of homosexual men and women alike.
* * * At bottom, none of the theories advanced by the EEOC and the Seventh Circuit can overcome Title VII’s plain text and the longstanding precedent of this Court and others. The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect. Moreover, whatever this Court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination. Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.
22

CONCLUSION This Court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation.
Respectfully submitted, CHAD A. READLER TOM WHEELER
Acting Assistant Attorneys General HASHIM M. MOOPPAN
Deputy Assistant Attorney General /s/ Charles W. Scarborough CHARLES W. SCARBOROUGH STEPHANIE R. MARCUS
Attorneys U.S. Department of Justice 950 Pennsylvania Avenue N.W. Washington, D.C. 20530 (202) 514-1633
JULY 2017
23

CERTIFICATE OF COMPLIANCE I hereby certify this brief complies with the requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point Garamond, a proportionally spaced font. According to the word count of Microsoft Word, the brief contains 5,619 words, excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii).
/s/ Charles W. Scarborough Charles W. Scarborough

CERTIFICATE OF SERVICE I hereby certify that on July 26, 2017, I electronically filed the foregoing brief with the Clerk of this Court by using the appellate CM/ECF system. The participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/ Charles W. Scarborough Charles W. Scarborough

Attachment A Proposed Legislation From 1974 To Present That Would Bar Employment Discrimination Based On Sexual Orientation
1970s
Equality Act of 1974, H.R. 14752, 93d Cong. (1974) Civil Rights Amendments of 1975, H.R. 166, 94th Cong. (1975) A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975) Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975) Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975) Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976) Civil Rights Amendments of1975, H.R. 451, 95th Cong. (1977) Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977) Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977) Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977) Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977) Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977) Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977) Civil Rights Amendment Act of 1979, H.R. 2074, 96th Cong. (1979) A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979)
1980s
Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981) Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981) A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong. (1981) A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong. (1983) Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983) Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983) Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985) Civil Rights Amendments Act of 1985, S. 1432, 99th Cong. (1985) Civil Rights Amendments Act of 1987, 1-J.R. 709, lOOth Cong. (1987) Civil Rights Amendments Act of 1987, S. 464, IOOth Cong. (1987) Civil Rights Amendments Act of 1989, H.R. 655, lOlst Cong. (1989)
ADD001

Civil Rights Amendments Act of 1989, S. 47, lOlst Cong. (1989)
1990s
Civil lights Amendments Act of 1991, S. 574, 102d Cong. (1991) Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991) Civil Rights Amendments Act of 1993, l-l.R. 423, 103d Cong. (1993) Civil lights Act of 1993, l-l.R. 431, 103d Cong. (1993) Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994) Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong. (1994) Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995) Employment Non-Discrimination Act of 1995, l-l.R. 1863, 104th Cong. (1995) Employment Non-Discrimination Act of 1995, S. 932, 104th Cong, (1995) Employment Non-Discrimination Act of1996, S. 2056, 104\h Cong. (1996) Employment Non-Discrimination Act of 1997, 1-1.R. 1858, 105th Cong. (1997) Employment Non-Discrimination Act of 1997, S. 869, 105th Cong. (1997) Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong. (1998) Civil lights Amendments Act of 1999, H.R. 311, 106th Cong. (1999) Employment Non-Discrimination Act of 1999, 1-1.R. 2355, 106th Cong, (1999) Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong. (1999)
2000s
Civil Rights Amendments Act of2001, H.R. 217, 107th Cong. (2001) Employment Non-Discrimination Act of2001, H.R. 2692, 107th Cong. (200 I) Employment Non-Discrimination Act of2002, S. 1284, 107th Cong, (2001) Civil Rights Amendments Act of2003, !-l.R. 214, 108th Cong. (2003) Employment Non-Discrimination Act of 2003, S. 1705, 108th Cong. (2003) Employment Non-Discrimination Act of2003, H.R. 3285, 108th Cong. (2003) Civil lights Amendments Act of2005, I-LR. 288, 109\h Cong. (2005) Employment Non-Discrimination Act of2007, H.R. 2015, I 10th Cong. (2007) Employment Non-Discrimination Act of2007, H.R. 3685, llOth Cong. (2007) Employment Non-Discrimination Act of2009, H.R. 3017, I I Ith Cong, (2009) Employment Non-Discrimination Act of2009, S. 1584, 11 lth Cong. (2009)
ADD002

2010s
Employment Non-Discrimination Act, H.R. 1397, I 12th Cong. (2011) Employment Non-Discrimination Act of201 l, S. 811, I 12th Cong. (2011) Employment Non-Discrimination Act of2013, S. 815, I 13th Cong. (2013) Employment Non-DiscriminatiOn Act of2013, H.R. 1755, I 13th Cong. (2013) Equality Act, H.R. 3185, ll 4th Cong. (2015) Equality Act, S. 1858, 114th Cong. (2015) Equality Act, H.R. 2282, ! 15th Cong. (2017) Equality Act, S. 1006, ! 15th Cong. (2017)
ADD003

 
 No. 15-3775

444444444444444444444444
In the United States Court of Appeals for the Second Circuit ________________
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Plaintiffs-Appellants,

v.

ALTITUDE EXPRESS, D/B/A SKYDIVE LONG ISLAND AND RAYMOND MAYNARD,
Defendants-Appellees. ________________

On Appeal from the
U.S. District Court
for the Eastern District of New York _______________________________

Brief Amicus Curiae of Conservative Legal Defense and Education Fund,
Public Advocate of the United States, and United States Justice Foundation
in Support of Appellees and Affirmance _______________________________

Joseph W. Miller

William J. Olson*

U.S. JUSTICE FOUNDATION

Herbert W. Titus

Ramona, CA 92065

Robert J. Olson

Attorney for Amicus

Jeremiah L. Morgan

U.S. Justice Foundation

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615

(703) 356-5070

July 26, 2017

Attorney for Amici Curiae

*Attorney of Record

444444444444444444444444

DISCLOSURE STATEMENT The corporate amici curiae herein, Conservative Legal Defense and Education Fund, Public Advocate of the United States, and United States Justice Foundation, submit this Disclosure Statement pursuant to Rules 26.1(a) and 29(c), Federal Rules of Appellate Procedure. Amici are non-stock, nonprofit corporations, which have no parent companies, and no person or entity owns them or any part of them.
/s/ William J. Olson William J. Olson

TABLE OF CONTENTS DISCLOSURE STATEMENT

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I. ZARDA WAS FIRED FOR HIS INAPPROPRIATE BEHAVIOR, NOT HIS SEXUAL ORIENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. SEXUAL ORIENTATION IS NOT SEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III. LAMBDA’S CASE THAT SEX COMPREHENDS SEXUAL ORIENTATION IS LEGAL SOPHISTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Lambda’s “Sex-Plus” Theory Is Based on a Fallacious Comparison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Lambda’s Analogy That Sex Is Like Race Is Fallacious . . . . . . . . . 10

C. Lambda’s Claim that Sexual Orientation Is like Sexual Stereotyping in Price Waterhouse v. Hopkins Is Fallacious . . . . . . . 12

IV. THE LAMBDA BRIEF IS BASED UPON A FALLACIOUS EVOLUTIONARY JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii
TABLE OF AUTHORITIES Page
HOLY BIBLE Hosea 8:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
FEDERAL STATUTES 42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Civil Rights Act of 1964, Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passim
CASES Anonymous v. Omnicom Group, Inc., 852 F.3d 195 (2nd Cir. 2017) . . . . . . . 11, 18 Hively v. Ivy Tech Cmty College of Ind., 853 F.3d 339 (7th Cir. 2017) . . . . . . 7, 21 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Perry v. MSPB, 198 L.Ed.2d 527 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Price Waterhouse v. Hopkins, 490 U.S. 8 (1989) . . . . . . . . . . . . . . . . . . 12, passim Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
MISCELLANEOUS W. Blackstone, Commentaries of the Laws of England (Univ. Chi.
Facsimile ed.: 1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 P. Boghossian & J. Lindsay, “The Conceptual Penis as a Social
Construct: A Sokal-Style Hoax on Gender Studies” . . . . . . . . . . . . . . . . . . 15 Fred V. Cahill, Jr., Judicial Legislation (Ronald Press Co.: 1952) . . . . . . . . . . . . 19 R.L. Clinton, God & Man in the Law (U. Press Kan.: 1997) . . . . . . . . . . . . . . . . 22 J. Kent, Commentaries on American Law (1826-30) . . . . . . . . . . . . . . . . . . . . . . . 9 R. Pound, Introduction To The Philosophy of Law (Yale: 1922) . . . . . . . . . . . . . 20 Herbert Schlossberg, Idols for Destruction (Crossway Books: 1990). . . . . . . 21, 22

INTEREST OF AMICI CURIAE1
Amici Conservative Legal Defense and Education Fund and United States
Justice Foundation are exempt from federal income taxation under Internal
Revenue Code (“IRC”) section 501(c)(3). Amicus Public Advocate of the United
States is a nonprofit organization exempt from federal income taxation under IRC
section 501(c)(4). Each entity is dedicated, inter alia, to the correct construction,
interpretation, and application of the law. These amici filed amicus curiae briefs
in numerous other cases involving homosexual and so-called “transgender” rights,
as well as application of the Civil Rights Act, most recently including:
• G.G. v. Gloucester County School Board (4th Cir. No. 15-2056), Brief Amicus Curiae of Public Advocate of the United States, et al., in Support Petition for Rehearing En Banc (May 10, 2016) (involving application to Civil Rights Act Title IX to transgender access to bathrooms and locker rooms of the opposite sex);
• Gloucester County School Board v. G.G. (Supreme Court No. 16273), Brief Amicus Curiae of Public Advocate of the United States, et al., in Support of Petitioner (Jan. 10, 2017);
• G.G. v. Gloucester County School Board (4th Cir. No. 15-2056), Brief Amicus Curiae of Public Advocate of the United States, et al., in Support of Defendant-Appellee and Affirmance (May 15, 2017) (on remand); and
1 No party’s counsel authored this brief in whole or in part. No person, including a party or a party’s counsel, other than amici curiae, their members, or their counsel, contributed money that was intended to fund preparation or submission of this brief.

2 • E.E.O.C. v. Harris Funeral Home (6th Cir. 16-2424), Brief Amicus
Curiae of Public Advocate of the United States, et al., in Support of Appellee and Affirmance (May 24, 2017) (involving application of Title VII to a transgender employee).
STATEMENT On April 18, 2017, a panel of this Court decided that it was bound by Second Circuit precedent2 that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, 855 F.3d 76 (2017). On May 25, 2017, this Court granted rehearing en banc, and invited amicus curiae briefs, to decide the following question: Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination “because of ... sex”?
ARGUMENT
I. ZARDA WAS FIRED FOR HIS INAPPROPRIATE BEHAVIOR, NOT HIS SEXUAL ORIENTATION. Even before this Court considers the legal question it posed in its Order of
May 25, 2017, it must ensure this case is an appropriate vehicle to decide whether discrimination based on “sexual orientation” is actionable. It is not. The Appellant urges this Court to assume that the discrimination alleged in this case was about “sexual orientation.” It was not. Rather, as Zarda’s own brief makes
2 See Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000).

3 clear, the reason he was fired was not for his sexual orientation, but for his overt sexual behavior.
Zarda made no secret about his sexuality with his boss and coworkers. In fact, for many years prior to Zarda’s firing, “Maynard [knew] plaintiff was gay” and “never told Zarda to cover his sexuality.” Aplt. Br. at 15. In fact, among coworkers at the office, “Zarda’s orientation was subject of humor.” Id. Based on the oversharing that is rampant in Zarda’s brief, it is clear that everyone at his office (including Maynard) knew of and accepted his sexuality, even if he was the subject of “testosterone-crammed” jokes. Id.
Rather, it was only when Zarda chose to act in an unprofessional manner and openly discuss his sexuality with customers (rather than his coworkers), that Maynard was forced to take action. In fact, as the Zarda brief further notes, he had a bad habit of unprofessionally sharing details about his sexuality with anyone who would listen (including some customers who did not make objections), and still Maynard did not fire him. Id. at 12. However, it seems clear that when a customer finally complained about Zarda’s unprofessional behavior, Maynard was forced to take action.
Zarda’s brief essentially claims that his homosexuality permitted him to engage in unprofessional behavior with customers, and that to require a certain

4 minimum level of professionalism from employees is actionable. As the Zarda brief alleges, the main reason he chose to reveal his homosexuality to this particular customer was because he was strapped to her. Id. at 9. Although the panel opinion notes that “Zarda alleged that another skydiving instructor had disclosed that he was heterosexual but was not punished,” Zarda at 80 n.3, it would seem a matter of common sense that this disclosure was not made to a woman to whom the instructor was strapped. It also seems clear that an employer has the right to dismiss straight male skydivers who took the opportunity to tell every woman customer to whom they were strapped to how straight they were, and the employer should have the same authority over homosexual employees.
In fact, Zarda’s brief actually admits that he was not fired because of his sexual orientation, but rather because of his indiscriminate chit chat — “Zarda lost his job because he told Orellana that he was a gay man.” Aplt. Br. at 8.
The record is clear, then, that Zarda was not fired for being homosexual, but for his apparent need to openly profess his gayness to everyone with whom he came into contact — so they would celebrate it along with him. For such manifestly unprofessional behavior, Title VII provides no protection.

5
II. SEXUAL ORIENTATION IS NOT SEX.
What appears to be appellant’s principal amicus curiae, Lambda Legal
Defense and Education Fund (“Lambda”), filed an amicus brief which claims that
discrimination based on sexual orientation “is” and “must be recognized as”
discrimination based on sex. Lambda Brief at 3, 4, 6, 8 (emphasis added).
However, when the time came to cite authority to back up that bald assertion,
Lambda quickly backed off, opting instead to obscure by laying out a laundry list
of terms such as:
• “involves sex-based considerations” • “‘inseparable from’” sex • “‘inescapably linked to sex’” • “in relation to sex” • “takes account of an individual’s sex” and • “‘inherently rooted in gender3 stereotypes.’” Id. at 4, 5 & n.3, 8.
3 It is quite interesting that Lambda here uses “sex” and “gender” interchangeably. Id. at 8, 11, 23. However, “sex” is biological and fixed by nature, “sexual orientation” is psychological, variable by how a person feels about others, while “gender” is existential in relation to how a person feels about himself at any moment of time. There are two sexes — male and female. However, there are several “sexual orientations” — heterosexual, homosexual, bisexual, asexual, and perhaps more. As for “gender,” the list of types is endless, subject only to human imagination, and for some includes things like “pedophilia” and “zoophilia.” The idea of “gender” is evolving to the point where it can encompass anything the mind can conceive. In February of 2014, Facebook added 58 gender options to its users’ profiles. By June of that year, UK Facebook users could select from 71 options. By February of 2015, Facebook no longer defines gender at all, allowing each person to choose one’s own gender instead of being “pigeon-holed” by only 71 options. In a blank space provided, a Facebook user

6 Upon more careful examination, Lambda is not arguing that sexual orientation discrimination “must be recognized as” sex discrimination, but only that “‘there is no reason why’ discrimination because of an individual’s sex ‘cannot include’ sexual orientation discrimination.” Id. at 15. As Lambda is finally forced to admit, “sexual orientation” is not actually the same thing as “sex.” Id. at 5 n.3 (“This is not to say that ‘sex’ and ‘sexual orientation’ are interchangeable concepts or terms....”). However, Lambda discards this flaw in its argument as “irrelevant,” hoping to deflect this Court into believing that “it is wholly unnecessary for Plaintiffs-Appellants to demonstrate that ‘sexual orientation’ and ‘sex’ are synonyms or that they are interchangeable....” Id. at 12. Lambda should not be allowed to bootleg “sexual orientation” into the list of categories protected by Title VII from discrimination, especially when it admits the two are not at all the same.
can become any “gender” that one wishes, subject only to the limits of expression on the ASCII keyboard. Perhaps one of the most interesting genders offered is the Native American “two-spirit” gender, which includes both male and female elements. Nevertheless, although it is easy to be diverted into gender studies, the task at hand is to discover the meaning of “sex” as used in a federal statute, not as used in an academic discussion.

7 III. LAMBDA’S CASE THAT SEX COMPREHENDS SEXUAL
ORIENTATION IS LEGAL SOPHISTRY. Citing the Seventh Circuit’s recent decision in Hively v. Ivy Tech Cmty College of Ind., 853 F.3d 339, 341 (7th Cir. 2017), the Lambda brief claims that “‘discrimination on the basis of sexual orientation is a form of sex discrimination.’” Lambda Br. at 3. In support, the Lambda brief offers three reasons, all of which seem superficially plausible, but actually are completely fallacious. A. Lambda’s “Sex-Plus” Theory Is Based on a Fallacious
Comparison. The Lambda brief rests, first of all, on its “‘sex-plus’” proposition that sexual orientation: necessarily involves sex-based considerations because the discrimination endured by a man based on his attraction to men is not suffered by any woman with an identical attraction to men. [Id. at 3-4 (emphasis added).] This statement presupposes that the sexual relationship of a man and another man is identical to the sexual relationship of a woman and a man. They are not now, and never have been, identical. Therefore, the proper comparison would be to pair the man, or the woman, each to a person of the opposite sex so that each is similarly situated. By making that comparison, there would be no sex

8 discrimination because the man and the woman would be treated exactly the same. The simple fact is that a man who is in a sexual relationship with another man is not “similarly situated” with a woman who is in a sexual relationship with a man. Rather, they are dis-similarly situated.
That is why it is commonly stated that a man married to another man is in a same-sex marriage, but a man who is married to a woman is in a marriage. In Obergefell v. Hodges, 135 S.Ct. 2584 (2015), for example, the Supreme Court was careful not to declare that a same-sex marriage was identical to an opposite-sex union, but only that whatever benefits the government confers upon a heterosexual union must also be conferred on a homosexual union.
So it is the Lambda Brief, and the court opinions upon which it relies, that are illogical, not the other way around. Again, this is so because of Lambda’s fallacious comparison. Consider this illustration from the Lambda brief: “‘If a business fires Ricky because of his sexual activities with Fred, while this action would not have been taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.’” Id. at 6. No, Ricky is not being discriminated against because of his sex (prohibited by Title VII), but because of his sexual orientation (not prohibited by Title VII). By the very nature of the biological differences between males and females, because two

9 men cannot do “exactly the same things” with each other as would one man and
one woman.4 Biologically, then, Ricky is not — indeed cannot — be similarly
situated vis-a-vis his sexual relationship with Lucy as he would be with Fred. So
the firing of Ricky is not discrimination because of his “sex,” but because of his
“sexual orientation” — a distinction that even the Lambda Brief acknowledges
when it admits these are not “interchangeable concepts or terms.” Id. at 5 n.3.
Therefore, “sex” does not — indeed, cannot — include “sexual orientation,” the
two being very different terms or concepts.
Indeed, under the Lambda Brief’s creative “sex-plus” theory, the action
taken against a person on the basis of his “sexual orientation” is necessarily
discrimination based on the “plus” add-on — not the “sex” part of the theory. And
Title VII only bans discrimination based on sex. Lambda’s “sex-plus” theory, by
4 Since time immemorial, the existence of a marriage is not based only on consent of the parties, or a civil or religious ceremony, but on the “consummation” of that marriage by sexual intercourse. As Chancellor James Kent explained:
If the contract be made per verba de praesenti, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesiae. [J. Kent, Commentaries on American Law (1826-30), Claitor’s Publishing Div. Lecture 26, section 6 (emphasis added.)] Although it appears a concerted effort has been made to politicize and broaden the dictionary definition of “sexual intercourse” to include acts of sodomy, from time immemorial, sexual intercourse has required penile-vaginal sexual penetration. Clearly, basic anatomy makes the comparisons made by Lambda inapt.

10 its very definition, proves that “sexual orientation” discrimination is not “sex” discrimination. Rather, it asserts “‘sex-plus’ is the term for discrimination occurring not categorically against all members of one sex, but only those members sharing a certain trait” that is unrelated to their sex. Id. at 4 n.2 (emphasis added). Indeed, Zarda’s homosexuality is not “inseparable from and inescapably linked to sex,” id. at 4, but rather had nothing to do with his sexual orientation — as Lambda is so quick to point out, both men and women may be attracted to men. Id. at 4. Rather, it was Zarda’s homosexuality — a trait not shared by most men — which is the alleged basis for the alleged discrimination.
B. Lambda’s Analogy That Sex Is Like Race Is Fallacious. Lambda claims that sex is like race because Title VII “‘on its face treats [race and sex] exactly the same.’” Lambda Br. at 7 (emphasis added). It does not. While discrimination because of race is not subject to any exceptions, sex decidedly is. See 42 U.S.C. § 2000e-2(e). Even the Lambda Brief concedes this point in a footnote, but insists that these “limited, narrow exceptions” “are not relevant here.” Lambda Br. at 7 n.5 (emphasis added). But the Lambda Brief never explains why the existence of these exceptions is not relevant — it just asserts it.

11 Instead of establishing its point that sex and race are “exactly the same,” the Lambda Brief enlists the “associational discrimination” theory articulated by this Court with respect to racial discrimination, in which it ruled that if Title VII is violated by an employer by action taken against the employee for being in a sexual relationship with a person of another race, then it is considered to be a violation of the employee’s own race. Anonymous v. Omnicom Group, Inc., 852 F.3d 195, 204 (2nd Cir. 2017) (emphasis added). Similarly, Lambda argues, if an employer takes action against an employee on the basis of a sexual relationship that the employee has with a person of the same sex, then the employee is discriminated against on the basis of “sex” and so the same rule should apply — the employee is being discriminated against because of his own sex. The problem with this argument is that it rests upon a dissimilar premise, not an analogous one. In the race case, the associational theory applies only to an employee who is associated with a person of another or different race, whereas in the sex case, the associational theory is applied only when the person is in a relationship with a person of the same sex. If the employee and the associate are of the same race, then there could be no violation of Title VII. Thus, the two cases are not analogous. Further, as discussed above, a relationship between a man and a man cannot possibly be considered the same as one between a man and a woman,

12 because they are not capable of “doing the same things” with one another. An interracial relationship, however, is capable of doing the same thing. A white man and a black woman, however, are similarly situated to two white people or two black people. To equate interracial relationships to homosexual activity is fallacious.
C. Lambda’s Claim that Sexual Orientation Is Like Sexual Stereotyping in Price Waterhouse v. Hopkins Is Fallacious.
Neither Zarda’s brief nor Lambda’s brief presents thoughtful analysis as to why Price Waterhouse v. Hopkins, 490 U.S. 8 (1989), supports the view that Title VII prevents sex discrimination. In fact, Zarda’s brief gives almost no attention to Price Waterhouse v. Hopkins except to hold it up as an illustration of the admirable creativity of the federal courts in applying Title VII beyond the text and authorial intent of that law: “Congress adopted Title VII without suggestion that sex stereotypes were illegal, see Price Waterhouse...” Aplt Br. at 44. Zarda makes only one reference to Price Waterhouse in a way that relates at all to the question posed by the Court on en banc reconsideration:
But because the decision [in Simonton] based its holding on only a pleading, it left open the question for another day as to whether a plaintiff may allege subjugation to sex stereotypes, as recognized by Price Waterhouse ... as a basis to proceed under Title VII. Simonton, 232 F.3d at 37-38. [Aplt. Br. at 20.]

13
Zarda leaves it there. There is no argument in support of why Price Waterhouse
would decide this issue — a complete failure of advocacy.
The Lambda brief tries to fill this void with these few sentences:
discrimination based on [gender] stereotypes indisputably violates Title VII. See Price Waterhouse, 490 U.S. at 251 (“As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match [] the stereotype associated with their group.....”).
An individual’s same-sex attraction “represents the ultimate case of failure to conform to [a sex] stereotype.... It is thus untenable to suggest that Title VII does not cover discrimination based on this attraction. [Lambda Br. at 8-9 (citations omitted).]
The Lambda brief takes great liberties with the Price Waterhouse decision,
asserting that it somehow was meant to decide that discrimination based on sexual
orientation was banned by Title VII. To the contrary, Justice Brennan’s theory of
sex discrimination based on sex stereotypes was quite narrow:
In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.... “‘Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” [Price Waterhouse at 250-51 (emphasis added).]

14 One can see that Justice Brennan employs the word “gender” as a synonym to the statutory term “sex,” and in explaining “gender” to mean “sex” (i.e., male or female), the narrow scope of Price Waterhouse is made clear. Based on the text of the statute and a fair reading of Justice Brennan’s opinion, the rule of that case must be that unlawful discrimination under Title VII must be based only on either (i) sex or (ii) “sex stereotyping,” where that later term is understood to reveal an underlying bias against a woman (or man) because of her (or his) nature and characteristics. In sum, the Price Waterhouse decision simply clarified that Title VII barred not only discrimination against women as such, but also discrimination against women for how they may act as women — a thinly veiled version of opposition because a person is a woman. However, in no way does this doctrine establish a free-floating cause of action based on a right to be free of any sort of sexstereotyping that does not reveal categorical discrimination against a real biological man or woman. To understand the psychological (not therefore legal) term “sexstereotyping,” it is necessary to examine the derivation of that term in Price

15
Waterhouse. There, the term was attributed to Dr. Susan Fiske, a psychologist5
who testified at trial for plaintiff Hopkins regarding statements made about the
plaintiff by others at Price Waterhouse. Importantly, her testimony was designed
to establish unlawful discrimination and was not limited to “the overtly sex-based
comments of partners but also on gender-neutral remarks....” Price Waterhouse at
235. Justice Brennan summarized her testimony as follows:
According to Fiske, Hopkins’ uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks ... were the product of sex stereotyping. [Id. at 235-36 (emphasis added).]
Justice Brennan on behalf of a minority of four justices lamely attempted to
demonstrate the reliability of Dr. Fiske’s imputation of discriminatory motives to
5 Courts must be very wary of grounding legal decisions on the social sciences, especially when it relates to sex. Recently, two social scientists demonstrated the openness of psychologists and other social scientists to the most irrational and foolish notions that fit their personal sexual and political views. See P. Boghossian & J. Lindsay, “The Conceptual Penis as a Social Construct: A Sokal-Style Hoax on Gender Studies,” http://www.skeptic.com/reading_room/ conceptual-penis-social-contruct-sokal-style-hoax-on-gender-studies/. The two authors created a “paper” entitled “The Conceptual Penis as a Social Construct,” consisting of 3,000 words of utter nonsense posing as academic scholarship. Then a peer-reviewed academic journal in the social sciences accepted and published it. The two scholars who perpetuated this hoax asserted “that the conceptual penis is better understood not as an anatomical organ but as a gender-performative, highly fluid social construct.” The authors stated, “[w]e assumed that if we were merely clear in our moral implications that maleness is intrinsically bad and that the penis is somehow at the root of it, we could get the paper published in a respectable journal.” Id.

16
Price Waterhouse personnel — despite the fact that she never “met any of the
people involved in the decisionmaking process,” by pointing out that “it was
commonly accepted practice for social psychologists to reach this kind of
conclusion” without any personal contact with the persons allegedly being
demeaned. Price Waterhouse at 236. Justice Brennan thereby implicitly adopted
for the Court an unreliable standard of proof just because Dr. Fiske said it was
“commonly” used in the world of social psychology.
In dissent, Justice Kennedy, Chief Justice Rehnquist, and Justice Scalia
exposed that Dr. Fiske’s testimony was grounded in sand:
The plaintiff who engages the services of Dr. Susan Fiske should have no trouble showing that sex discrimination played a part in any decision. Price Waterhouse chose not to object to Fiske’s testimony, and at this late stage we are constrained to accept it, but I think the plurality’s enthusiasm for Fiske’s conclusions unwarranted. Fiske purported to discern stereotyping in comments that were gender neutral — e.g., “overbearing and abrasive” — without any knowledge of the comments’ basis in reality and without having met the speaker or subject. “To an expert of Dr. Fiske’s qualifications, it seems plain that no woman could be overbearing, arrogant, or abrasive: any observations to that effect would necessarily be discounted as the product of stereotyping. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes.” [Id. at 293 n.5 (citations omitted).]

17 IV. THE LAMBDA BRIEF IS BASED UPON A FALLACIOUS
EVOLUTIONARY JURISPRUDENCE. Audaciously, Lambda contends that it is “irrelevant” and “wholly unnecessary for [Zarda] to demonstrate that ‘sexual orientation’ and ‘sex’ are synonyms or that they are interchangeable concepts or terms.” Id. at 12. Thus, the Lambda Brief rejects any and all efforts by courts to discern the “‘original public meaning’” of the phrase and word. Id. at 13 n.10. Indeed, the Brief argues that Title VII was “not enacted in the same legal era” as subsequent attempts to enact legislation that proscribes “sexual orientation” in addition to or separate from existing statutes aimed at discrimination on account of “sex.” Id. at 13-14. Therefore, Lambda insists that it is “anachronistic to rely on recent legislation specifically enumerating ‘sexual orientation’ to justify a narrow interpretation ... ‘because of ... sex.’” Id. at 14. Instead, Lambda urges this Court to ignore the “flaw[ed] ... arguments that emphasize what words are not in the statute, rather than ‘the scope of the language that already is in the statute.’” Id. at 9. With this argument settled, Lambda uncovers the common denominator of all its arguments (sex-plus, comparisons to race, sex stereotypes) — an “evolving legal landscape.” When legal evolution is glorified, every principle known to man can be jettisoned such as here, where “the

18 changed ‘backdrop of the Supreme Court’s decisions’” opens the door to a “‘broader [view of] discrimination on the basis of sexual orientation.’” Id. at 10. Lambda simply proclaims that “sex” now encompasses “sexual orientation” because “the right of same-sex couples to marry is now recognized as fundamental” and “intimate relations between same-sex couples” can no longer be criminalized. Id. It is, Lambda asserts, a “post-Lawrence, post-Obergefell world” and past “perspectives must be reconsidered.” Id.
In harmony with Lambda, as Chief Judge Katzmann of this Circuit had already forecasted, this Circuit’s rulings and comparable rulings of sister circuits — “that discrimination ... did not encompass discrimination on the basis of sexual orientation” — were not erroneous when made, just out-of-date today. Omnicom Grp. at 206 (Katzmann, C.J., concurring). Now that the Supreme Court has “afford[ed] greater legal protection to gay, lesbian, and bisexual individuals,” the Chief Judge asserts, the lower federal courts need not wait for the Supreme Court to act, as the “societal understanding of same-sex relationships has evolved considerably.” Id. at 206 (emphasis added).
In his search for a rationale to justify ignoring the repeated failed efforts to persuade Congress to add sexual orientation to Title VII, the Chief Judge has wittingly or unwittingly adopted the view of Oliver Wendell Holmes, Jr., as

19 documented by Yale political science professor Fred V. Cahill, Jr. in his book,
Judicial Legislation (Ronald Press Co.: 1952):
[L]aw is a growing thing and ... its growth is determined, not by logic, but by the ‘felt necessities of the time.’ In this growth, the judge is bound to play an active part. The law moves, according to Holmes, in a climate of opinion made up of moral and political beliefs, judgments of policy and even prejudices — all of which affect the judge. [Cahill at 39 (emphasis added).]
In sum, as Cahill concluded, Holmes asserted that “[j]udges really make law ...
because they are motivated by the same considerations as is the legislator.” Id.
There is one overriding glitch in that philosophy. As newly installed Supreme
Court Justice Neil Gorsuch explained in his very first Supreme Court opinion:
If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. [Perry v. MSPB, 198 L.Ed.2d 527, 545 (2017) (Gorsuch, J., dissenting) (emphasis added).]
Consonant with this separation of powers principle, this Court must decline
Lambda’s invitation to disregard the original meaning of “because ... of sex,” as it
appears in Title VII of the 1964 Civil Rights Act, simply because the Supreme
Court gave approval to same-sex sodomy in 2003 and same-sex marriage in 2015.
See Lambda Br. at 10-11. While the latter two rulings no doubt have “enjoyed

20 wide and enthusiastic judicial support,”6 that should not be the standard by which this Court should measure its own precedents, as Lambda urges. Id. at 2-3. Rather, as Sir William Blackstone has reminded us, a court precedent should not be abandoned unless “the former determination is most evidently contrary to reason, much more if it be contrary to the divine law.” 1 W. Blackstone, Commentaries of the Laws of England at 69-70 (Univ. Chi. Facsimile ed.: 1765). In today’s postmodern, evolutionary world, however, the temptation for judges to rule lawlessly is enormous, as judges and lawyers “wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires.” See R. Pound, Introduction To The Philosophy of Law at 3 (Yale: 1922). Should the judges of this Court succumb to the temptation to appoint themselves as super legislators who can amend statutes based on their superior wisdom and power, they would do grave damage to the inherent authority of the law.
6 See Lambda Br. at 17 n.12 (emphasis added).

21 Lacking any support for its position in the text of Title VII or authorial intent of that law,7 the Lambda brief invites the Court to ignore those two touchstones and come join its campaign for “legal evolution.” It perceives an evolution that would bring us toward a modern, secular state, loosed from the chains of morality. Doubtless, the evolutionary trend toward sanctioning immoral behavior is occurring in the federal courts, but that does not mean that it is correct, constitutional, or without consequence. Indeed, with an evolutionary view of “law,” society moves away from anything resembling the “rule of law,” to “rule by man” exercised by unelected lawyers, acting as “philosopher kings,” holding office as federal judges. Unable to obtain legislation fast enough to satisfy their appetites for change, those who embrace sexual immorality appeal to judges to usurp the power to legislate for the nation: Western society, in turning away from Christian faith, has turned to other things. This process is commonly called secularization, but that conveys only the negative aspect. The word connotes the turning away from the worship of God while ignoring the fact that something is being turned to in its place. [Herbert Schlossberg, Idols for Destruction (Crossway Books: 1990) at 6.] Dr. Schlossberg explains that to which society is turning are idols — “properly understood as any substitution of what is created for the creator.” Id. “When the society ... turns away from God to idols, it is an idolatrous society and therefore is
7 See Hively at 353 (Posner, J., concurring).

22
heading for destruction.” Id. “With their silver and gold, they made idols for their
own destruction.” Hosea 8:4. Various judges, drawn from “‘the highly
secularized intellectual elite”’ have appointed themselves to lead the society
toward the idol of sexual liberty. The temptation, Schlossberg concluded, is as old
as the Garden of Eden, where the serpent told Eve:
“You will be like God, knowing good and evil.....” The biblical view is that God informs humanity about what is good and what is evil, and the form this information takes is law... The alternate view is in the temptation, succumbed to by Eve and her humanist descendants, to make autonomous judgments about good and evil and so to be like God. [Schlossberg, supra, at 48-49.]
There is nothing new under the sun. Indeed, Professor Robert Lowry
Clinton puts the matter in perspective:
In the Old Testament, the Book of Judges tells the story ... of idolworshiping peoples with ineffectual gods confounded by the presence of a people whose God was invisible yet effectual. It is also a story of ... idolatry, as shown in the repeated lapses of God’s people and their consequent deliverance into the hands of their enemies. [R.L. Clinton, God & Man in the Law at 227-28 (U. Press Kan.: 1997).]
Professor Clinton explains that there is a way back:
In the end, it was the judge who emerged to show the people the error of their immersion in visible matter and to deliver them back to the invisible God from the hands of their oppressors. The method was, and is, always the same: the judges accomplish their task not by calling the people to follow them into a hypothetical, abstract future but by calling them to reclaim the traditions of a real and concrete past. [Id.]

23 CONCLUSION

For the foregoing reasons, the Court should find, yet again, that Title VII of

the Civil Rights Act of 1964 does not cover discrimination on the basis of sexual

orientation.

Respectfully submitted,

Joseph W. Miller U.S. JUSTICE FOUNDATION
Ramona, CA 92065 Attorney for Amicus U.S. Justice Foundation

/s/ William J. Olson William J. Olson* Herbert W. Titus Robert J. Olson Jeremiah L. Morgan WILLIAM J. OLSON, P.C.
370 Maple Ave. W., Ste. 4 Vienna, VA 22180-5615 (703) 356-5070 wjo@mindspring.com Attorney for Amici Curiae

July 26, 2017

*Counsel of Record

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) IT IS HEREBY CERTIFIED: 1. That the foregoing Brief of Amici Curiae Conservative Legal Defense and Education Fund, et al. in Support of Appellees and Affirmance complies with the type-volume limitation of Rule 32(a)(7)(B), Federal Rules of Appellate Procedure, because this brief contains 5,440 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect version 18.0.0.200 in 14-point Times New Roman.
/s/ William J. Olson William J. Olson Attorney for Amici Curiae Conservative Legal Defense and Education Fund, et al. Dated: July 26, 2017

CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing Brief Amici
Curiae of Conservative Legal Defense and Education Fund, et al. in Support of Appellees and Affirmance was made, this 26th day of July 2017, by the Court’s
Case Management/ Electronic Case Files system upon the attorneys for the parties.
/s/ William J. Olson William J. Olson Attorney for Amici Curiae Conservative Legal Defense and Education Fund, et al.

 
 15-3775
United States Court of Appeals
for the
Second Circuit
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.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
EN BANC BRIEF OF COURT-APPOINTED AMICUS CURIAE
Adam K. Mortara (application for admission pending) BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 (312) 494-4400 Court-Appointed Amicus Curiae
July 26, 2017

TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................ i TABLE OF AUTHORITIES ................................................................................................. ii STATEMENT OF INTEREST OF AMICUS CURIAE ................................................. 1 SUMMARY OF THE ARGUMENT ...................................................................................1 ARGUMENT ............................................................................................................................ 6 I. The Original Public Meaning Of “Because Of … Sex” Does Not
Include “Because Of … Sexual Orientation” ........................................................... 6 II. Discrimination On The Basis Of Sexual Orientation Is Not Direct Sex
Discrimination .............................................................................................................. 10 III. The So-Called Associational Race Discrimination Cases Do Not Resolve
This One .......................................................................................................................14 IV. Discrimination On The Basis Of Sexual Orientation Is Not, Ipso Facto,
Actionable Sex Stereotyping Under Price Waterhouse ..............................................18 CONCLUSION ......................................................................................................................21 CERTIFICATE OF COMPLIANCE.................................................................................23
i

TABLE OF AUTHORITIES
Cases
Bilski v. Kappos, 561 U.S. 593 (2010) ...................................................................................... 6
City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) .................................................................................... 10
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)..........................................................................19
Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998).........................................................................15
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) ................................................................. 6, 17
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003) ....................................................................... 19
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ........................................................................................ 9
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017)................................................................. passim
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008).............................................................. 14, 15, 17
Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 F. App’x 492 (9th Cir. 2009)...................................................................13
Loving v. Virginia, 388 U.S. 1 (1967) ........................................................................................ 17
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) ........................................................................................ 9
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) ................................................................................... 6
ii

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) .................................................................................... 8, 9
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) ....................................................................... 15
Perrin v. United States, 444 U.S. 37 (1979) ........................................................................................ 6
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................................................ passim
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) .................................................................................... 11
Reiter v. Ctr. Consol. Sch. Dist. No. 26-JT, 618 F. Supp. 1458 (D. Colo. 1985) ................................................................ 15
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014) ............................................................................. 1, 6, 8
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .................................................................................... 11
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) .................................................................................... 10
Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015) ................................................................................. 13
Velazquez v. State Dep’t of Corr., No. CV156051925S, 2016 WL 3265950 (Conn. Super. Ct. May 18, 2016) ........... 16
Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (1988) .................................................................................... 13
Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363 (S.D.N.Y. 1975) ............................................................... 15
iii

Statutes 2nd Cir. Local R. 29 ......................................................................................... 1 42 U.S.C. § 2000e-2......................................................................................3, 9 Fed. R. App. P. 29 ........................................................................................... 1 Other Authorities Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex
Discrimination, 69 N.Y.U. L. REV. 197 (1994) ....................................................................... 16 Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307 (2012) ...................................................................... 8 Jay Michaelson, Chaos, Law, and God: The Religious Meanings of Homosexuality, 15 MICH. J. GENDER & L. 41 (2008) .............................................................. 17 Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995) ....................................................................... 13 Webster’s New World Dictionary of the American Language (1969) ....................... 7
iv

STATEMENT OF INTEREST OF AMICUS CURIAE1 Amicus curiae counsel submits this brief in response to this Court’s order of June 20, 2017 [Dkt. 290]. The Court’s order invited briefing and argument “in support of the view that Title VII does not prohibit discrimination on the basis of sexual orientation.” Amicus curiae counsel provides that briefing herein.
SUMMARY OF THE ARGUMENT The Supreme Court insists that statutes be interpreted not by the ebbs and flows of modern language but by reference to the original public meaning of the enactment. Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (citation and internal quotation marks omitted)). The original public meaning of Title VII’s prohibition of discrimination “because of … sex” does not include “because of … sexual orientation.” See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 355 (7th Cir. 2017) (Posner, J., concurring) (“A broader understanding of the word ‘sex’ in Title VII than the original understanding is thus required in order to be able to classify the
1 Pursuant to Fed. R. App. P. 29(a)(4)(E) and LR 29.1(b), amicus counsel states that (i) no party’s counsel authored this brief in whole or in part; (ii) no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief; and (iii) no person, other than amicus curiae, contributed money that was intended to fund preparing or submitting this brief.
1

discrimination of which Hively complains as a form of sex discrimination.”). Judge Posner’s candid and unassailable observation resolves this case.
Against the original public meaning of Title VII, Zarda and her amici supporters rely first on a “but for” locution—the idea that if one simply asks whether the conduct the employer objected to would be similarly objectionable if performed by the other sex, that will reveal whether Title VII covers discrimination on that basis. Yet the Supreme Court has never used such a “comparator” test to interpret Title VII. Using the comparator test as an interpretive device flies in the face of numerous cases from the Court instructing that, for disparate treatment claims, the “true reasons” the employer had for taking the adverse employment action are what matter.
[W]e mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (plurality) (emphases added) (footnote omitted). Blind application of a flawed comparator test cannot substitute hypothetical reasons for those true ones—and “I fired him because he is gay” is the true reason in a sexual orientation discrimination case; not “I fired him because he is a man.” Because men and women can have any sexual orientation discrimination on the basis of the latter is not discrimination on the basis of the former.
2

Nor is it so-called “associational discrimination.” There is no such thing in Title VII as “associational discrimination,” there is discrimination against an employee because of “such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (a)(1). Zarda, Lambda Legal, and Hively make much of the cases involving interracial relationships while ignoring the common sense difference between those facts and the facts of this case, and indeed most cases of discrimination on the basis of sexual orientation.
In the mine run case of sexual orientation discrimination, the true reason for the employer’s conduct will not be “that the applicant or employee was a woman” or a man, it will be that the applicant or employee was homosexual, or bisexual.2 The employer will not be “act[ing] on the basis of a belief that a woman cannot be [a homosexual], or that she must not be” as Price Waterhouse says, but on the basis of a belief that human beings should not be homosexual. Hively, 853 F.3d at 370 (Sykes, J., dissenting) (citation and internal quotation marks omitted) (“To put the matter plainly, heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all.”). Not all cases are mine runs, of course, and if an employer would truthfully answer the Price Waterhouse question with “because you are a woman and women should not be homosexuals” and indicate that for men it is just fine that could be sex discrimination that violates Title VII. Similarly, if an employer is
2 This is, indeed, the mine run case. Zarda claimed that he was fired because he told a customer he was gay.
3

motivated by a belief that blacks should not be homosexual but whites can be, that could be race discrimination. Zarda and her amici supporters rely on a distortion of the “truthful response,” putting words into the employer’s mouth found nowhere in Zarda’s complaint or in any plausible view of the facts—“I fired you because you are a man and men shouldn’t be attracted to other men.” Compare JA0031 at ¶ 32 (“Plaintiff mentioning the fact that he is gay to a passenger, however, got him fired.”).
Compared to sexual orientation discrimination, in the context of race relations, the mine run and the outlier cases are inverted. To wit, the ugly truth is that in the most common scenarios of adverse employment actions motivated by interracial relationships the true motive is not be a race-neutral opposition to such relationships—e.g. the belief that it is equally immoral and inadvisable for whites to consort with blacks as it is for blacks to consort with whites. No, what lies behind these cases is the belief that one race is superior to another, and so it is uniquely wrong for one race (whites) to associate with another (blacks). That is not a raceneutral motive, it is a racist one. The truthful answer to the Price Waterhouse question is an answer sourced in racism—“you are white and a white person should not associate with blacks.” Title VII prohibits adverse employment actions that are in fact racist, and these cases fall into that category. But while we can call discrimination on the basis of sexual orientation wrong, or bigoted, or worse, we cannot call it “sexist” and be speaking English. To the extent that the interracial “association” cases have failed
4

to explicitly make their results turn on the racist origins of these viewpoints, that is forgivable because that which is well-known does not bear repeating.
That leaves “sex stereotyping,” a subject on which numerous courts of appeals appear to have far outstripped the narrow holding of Price Waterhouse. Sex stereotyping is evidence that may support a claim of sex discrimination; it is not, by itself, always sex discrimination. If this Court has to overrule any its precedents confusing the two, it should do so to avoid flouting the plain language of Title VII or mis-reading the Supreme Court as already having done so. Hively, 853 F.3d at 371 (“If the lower-court decisions involving ‘sex stereotyping’ are a confusing hodgepodge—and I agree that they are—the confusion stems from an unfortunate tendency to read Hopkins for more than it’s worth.” (Sykes, J., dissenting)).
Zarda advances a broad interpretation of Title VII that untethers liability from the Supreme Court’s requirement that only unlawful actual motives are relevant. Thus, Zarda is free to redefine an employer’s truthful response to the Price Waterhouse question into something more susceptible to a mechanistic and opportunistic “but for” analysis—turning evaluation of alleged sex discrimination into an alien motivefree inquiry. This broader view permits a Title VII claim even where the Price Waterhouse question would be answered honestly without reference to the plaintiff’s sex, but rather with reference to a sex-neutral motive. To read Price Waterhouse to open the door to status discrimination claims such as these is to even further rewrite Title
5

VII. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (William Pryor, J., concurring).
Zarda and her amici supporters are asking this Court to upend decades of universal (prior to Hively) appellate precedent in statutory interpretation. This Court should stay the course.
ARGUMENT I. The Original Public Meaning Of “Because Of … Sex” Does Not Include
“Because Of … Sexual Orientation” When interpreting Title VII, fundamental canons of statutory construction are perhaps a better place to start than some comparator test never before deployed for that purpose. The Supreme Court has told us to use the original public meaning of a statute to interpret it. Sandifer, 134 S. Ct. at 876; Bilski v. Kappos, 561 U.S. 593, 603 (2010) (“In patent law, as in all statutory construction, [u]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (alteration in original) (citation and internal quotation marks omitted)); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (repeating canon and using 1934 dictionary to interpret words in statute enacted in 1952); Perrin v. United States, 444 U.S. 37, 42 (1979) (“[W]e look to the ordinary meaning of the term ‘bribery’ at the time Congress enacted the statute in 1961.”). The word “sex” in Title VII refers to male and female human beings, biologically. Contemporary dictionaries confirm that this was the only common
6

definition of the word that could have been deployed. Hively, 853 F.3d at 362-63 (Sykes, J., dissenting); see also Webster’s New World Dictionary of the American Language (1969), at 1335 (defining the word as “1. either of the two divisions of organisms distinguished as male or female; males or females (especially men or women) collectively 2. the character of being male or female; all of the things which distinguish a male from a female”).3 The term “homosexuality” was not unknown in the 1960s. See id. at 696 (defining it as “sexual desire for those of the same sex”). Nor was “bisexual.” Id. at 150 (defining it as “a person who is sexually attracted by both sexes”). The appearance of the word “sex” both within the words, “homosexual” and “bisexual” and the phrase “sexual orientation” as well as in the definitions of these terms, appears to be the basis for the Hively majority’s remark that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” Hively, 853 F.3d at 350. Wordplay aside, no calisthenics are required to say that homosexuals can be male or female, and thus discriminating against them is not discrimination against males or females—i.e. not discrimination “because of … sex.”
3 The last definition provided here is “anything connected with sexual gratification or reproduction or the urge for these, especially the attraction of individuals of one sex for those of the other.” The case would surely be easy if anyone argued or thought that Title VII’s phrase “because of … sex” could refer to this third definition, but the statutory text does not make grammatical sense if such a definition is substituted, and also makes the category “sex” stand out from “race, color, religion” and “national origin.”
7

This is perhaps why the Hively majority, Judge Posner’s concurrence, Lambda
Legal, and Zarda never seriously dispute the proposition that in 1964 discrimination
“because of … sex” did not encompass the decision, for example, to fire someone
because they are gay—Zarda’s precise complaint in this case. The Hively majority plays
Scrabble and over-reads Price Waterhouse to get where it wants to go. Lambda Legal,
for its part, takes the time to respond in a footnote, where it derides the Hively dissent
for “employing a phrase popular among some professors but wholly absent from the
Supreme Court’s voluminous Title VII jurisprudence.” Lambda Legal En Banc Br.
[Dkt. 312], at 13 n.10 (“Lambda Br.”). Well, there is not a Title VII exception to the
law of statutory interpretation, and the Supreme Court has said it is the
contemporaneous (original), common (public), meaning (meaning) that is to be used in
statutory interpretation. Sandifer, 134 S. Ct. at 876.4
It is no answer to cite Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)
as some sort of license to depart from that original public meaning of Title VII.
4 Lambda Legal then has the cheek, having just made fun of law professor talk, to cite a law review article for the vague, wrong, and irrelevant proposition that discerning Title VII’s original public meaning is hard work. Id. (citing Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 HARV. L. REV. 1307 (2012)). Failing to provide a pincite means never having to admit that the authority in question nowhere supports the proposition. Franklin actually offers no affirmative case for what “because of … sex” even means (as if the words, “because” and “sex” were impossibly complex and vague in 1964), and then expresses a strange worry with courts using dictionary definitions to figure that out, an act absolutely in accordance with Sandifer and the “fundamental canon of statutory construction” it repeats. Franklin, 125 HARV. L. REV. at 1337 n.147.
8

Before Oncale, the Court had already held that harassment “because of … sex” constituted a violation of Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). These earlier cases interpret “terms” and “conditions” to encompass workplace harassment. Meritor, 477 U.S. at 64; 42 U.S.C. § 2000e-2 (a)(1). After that, the idea that who does the discriminating somehow affects whether it was “because of” one of the listed protected categories is textually absurd, and rightfully rejected. Oncale, 523 U.S. at 79 (“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”). The fact that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” id., is of no moment because what Congress thought should be irrelevant. What matters is the original public meaning of Title VII.
And that original public meaning either embraces all sex-based harassment, irrespective of who commits it, or the real source of the generational statutory shock in Oncale, assuming there is any, is that the original public meaning of “terms” and “conditions” does not include workplace harassment—i.e. that Meritor is wrongly decided. It follows that musing on the “principal evil” sentence in Oncale will be no help in interpreting “because of … sex.” Oncale is certainly not a license for this Court to depart from settled canons of statutory interpretation as if generational statutory shock has some independent value. Such a shock is, if anything, some evidence that
9

those pushing for that holding have got it wrong. Combined with the suggestion that this Court overturn decades of consistent precedent on statutory interpretation, it is powerful evidence that Zarda, her amici supporters, and the Hively majority have gotten it very wrong.
As the original public meaning does not embrace sexual orientation as a protected class in Title VII, the case should end there. Sexual orientation discrimination is not traditional discrimination on the basis of sex nor is it so-called “associational discrimination” (which is really just traditional discrimination and not a separate category). And it is not sexual discrimination in the form of “sex stereotyping,” though it can be associated with such a claim. II. Discrimination On The Basis Of Sexual Orientation Is Not Direct Sex
Discrimination The Supreme Court has, at times, deployed a “but for” locution to describe how a plaintiff might prove liability for intentional discrimination under Title VII. See, e.g., City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (if “the evidence shows treatment of a person in a manner which but for that person’s sex would be different” that “constitutes discrimination” (citation and internal quotation marks omitted)). However, that is just shorthand for what actually matters—the true reason or reasons for the adverse employment action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (at third step of inquiry, plaintiff must prove by a preponderance that “the legitimate reasons offered by the defendant were not its true
10

reasons”); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) (plaintiff must prove “that the real reason was intentional discrimination”); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“[T]he employer is in the best position to put forth the actual reason for its decision.”). The Court has never once endorsed using a comparative or “but for” test to interpret the text of Title VII and, in effect, to supply an alternative motive to the actual and true reasons that the evidence shows motivated the employment decision.
Creative legal reasoning and the application of a “but for” hypothetical that the employer never even considered do not make firing an employee for being a homosexual into firing that employee for being a man. Deploying the comparative test to interpret Title VII so as to supplant an employer’s opposition to homosexuality (or bisexuality) with another motive loses the plot entirely. It substitutes the useless results of a thought experiment—an artificial and counterfactual motive—for what the Supreme Court has said really matters.
[T]he point of ‘looking at comparators’ in Title VII cases is to see if the evidentiary record permits a factual inference of actual discriminatory motive; the comparative method has no interpretive function. Hively, 853 F.3d at 367 (Sykes, J., dissenting). This observation is what makes worthless both the Hively majority’s invocation of the “but for” test and the dissent’s. The former seeks to test whether all sexual orientation discrimination is sex discrimination by altering the plaintiff’s sex and his sexual orientation. Hively, 853 F.3d at 345. The latter keeps sexual orientation
11

constant. Id. at 365 (Sykes, J., dissenting). Both presume their opposite conclusions— if the law does not disaggregate intentional treatment of the basis of sex from treatment on the basis of sexual orientation then the Hively majority test is fine. But if it does, then the dissent’s test is right. Of course, Judge Sykes pointed out that this case should be an exercise in statutory interpretation. In that exercise—asking what Title VII’s original public meaning is—the Supreme Court has never used this vastly overrated comparative test and the Hively majority, Lambda Legal, and Zarda, have yet to actually enter an argument. The comparator discussion is a rigged game. The statutory interpretation discussion, the one that matters, is a game that should be abandoned because one side—Judge Sykes’—has run up the score so high. See also Hively, 853 F.3d at 353 (Posner, J., concurring) (“[W]hat is certain is that the word ‘sex’ in Title VII had no immediate reference to homosexuality; many years would elapse before it could be understood to include homosexuality.”); id. at 354-55 (Posner, J., concurring) (conceding that an originalist approach to statutory interpretation provides only one answer and then proceeding to equate interpretation of Title VII to a slew of constitutional decisions regarding the First Amendment, the Tenth Amendment, and the Due Process Clause).
The real end game here is a jettisoning of intent from intentional discrimination5 and judicial imposition of unconscious bias truffle-hunting in Title VII
5 Considerable calisthenics may be required.
12

disparate treatment cases. See Linda Hamilton Krieger, The Content of Our Categories: A
Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L.
REV. 1161, 1164, 1172 (1995) (criticizing Title VII jurisprudence for a failure to
address unconscious bias, because Price Waterhouse did not do it, stating “the plurality
opinion in Price Waterhouse frames causation not simply as an attempt to discern
what actuated an employer’s decision, but as an inquiry into the employer’s conscious
state of mind at the moment a decision was made”); Watson v. Fort Worth Bank & Tr.,
487 U.S. 977, 990 (1988) (noting that “disparate treatment analysis” does not address
“problem[s] of subconscious stereotypes and prejudices”); cf. also Tex. Dep’t of Hous. &
Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2511-12 (2015)
(“Recognition of disparate-impact liability under the FHA plays an important role in
uncovering discriminatory intent: it permits plaintiffs to counteract unconscious
prejudices and disguised animus that escape easy classification as disparate
treatment.”). That may well be a slippery slope Zarda and Lambda Legal embrace. It is
not one the Supreme Court has.6
6 Speaking of slippery slopes, it is not difficult to see how the Hively majority’s comparator test would deal with the firing of an employee who desired to use certain traditionally sex-segregated facilities in the company of the opposite sex. A woman who is fired for habitually using the men’s toilet or locker room would not have been fired had she been a man, after all. See Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 F. App’x 492, 493-94 (9th Cir. 2009) (Title VII prima facie case based on refusal to allow biological male transsexual to use women’s restroom—dismissal affirmed on ground that true reason for ban was “safety”). The result in Kastl (and any case like it) cannot be squared with the Hively but-for test—when the but-for test is satisfied discrimination exists as a matter of law (it being elevated to an interpretation of a
13

III. The So-Called Associational Race Discrimination Cases Do Not Resolve This One It is here that the subject turns to cases dealing with so-called associational race
discrimination. Adverse employment action that results from opposition to interracial relationships is race discrimination not because of some “but for” thought experiment but because it is the result of racist motives and ideology. The same cannot be said for opposition to homosexual relationships and sexism.7
A brief tour through the associational race discrimination cases shows what should not require repeating—whites are punished for being in interracial relationships not because of some race-neutral ethos but because of a toxic and sadly persistent philosophy of white superiority. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), one will search in vain for a neutral opposition to interracial relationships divorced from the worst kind of anti-black racism. The Vice President of the college is alleged to have told the plaintiff, inter alia, “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover,” and that the basketball program plaintiff coached needed to “keep [its] niggers in line.” Id. at 134 (alteration in original).
statute and all). Hively permits no room for the real reason when the hypothetical one does all the work. 7 Even if they were the same in this sense, being homosexual would still not be the equivalent of being in an interracial marriage. It is the equivalent of having the desire, not necessarily acted upon, to date outside of one’s race. Has anyone found the Title VII case where someone is fired for the status of being an “interracialist”?
14

Lambda Legal and the Hively majority quote the conclusion of Holcomb but miss the facts that provided the basis. See Lambda Br. at 7 (quoting Holcomb without noting that anti-black prejudice pervaded plaintiff’s allegations); Hively, 853 F.3d at 348 (same). There’s nothing wrong with that, as no one has identified any case of so-called “associational” racial discrimination that did not involve explicit or implicit racism, as opposed to studied race neutrality. See Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891 (11th Cir. 1986) (case of white man refused employment because married to a black woman, collecting further cases including Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D.N.Y. 1975) (white plaintiff discharged because “the defendant disapproved of a social relationship between a white woman and a black man”); Reiter v. Ctr. Consol. Sch. Dist. No. 26-JT, 618 F. Supp. 1458, 1459 (D. Colo. 1985) (nun, race not identified, alleged discrimination based on her association with those of Hispanic national origin)); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 882 (7th Cir. 1998) (white plaintiffs advancing claim that they were discriminated against because of their friendships with black co-workers, including alleging that co-worker commented “Why don’t you take your nose and put it up the black’s ass like you have always got it and keep it there?”). Cases in this vein raising meritorious or plausible claims are best analogized to a “racial stereotyping” version of Price Waterhouse. The employer discriminates against a white employee because he is white and evidence for that is that the employer has an invidious, racist view of how a white person should behave—e.g. not consort with blacks.
15

Of course, that is not what is at work in this case, or indeed in many if not most cases of sexual orientation discrimination. Zarda alleges only that he was fired because he told a customer he was gay, not because Altitude Express had (or perceived its customers to have) some sex specific theory about how men, as opposed to women, should behave. JA0031 at ¶ 32. His case is hardly unusual. See, e.g., Velazquez v. State Dep’t of Corr., No. CV156051925S, 2016 WL 3265950, at *3 (Conn. Super. Ct. May 18, 2016) (describing sex neutral derogatory terms typically used by those harboring animus towards homosexuals). In short there’s nothing race-neutral about the so-called interracial association cases but there is nothing sex-specific about most cases of sexual orientation discrimination.8 Viewed through the lens of common sense and experience, they produce radically different distributions. There may be counterexamples—i.e. the truly bizarre non-racist opposition to interracial relationships or the perhaps somewhat less bizarre sexist distinction between lesbians
8 Lambda Legal at least gestures at a hard connection between opposition to homosexuality and sexism. Lambda Br. at 18 (citing Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)). But it should take more than the musings of the academy to connect two distinct biases when the Supreme Court has commanded that disparate treatment cases focus on the “true reason” for the adverse employment action.
16

and gay men.9 That latter possibility is not a reason to classify all sexual orientation
discrimination as sex discrimination.10
There is one last reason to distinguish the racial “associational discrimination”
cases from this one. None of the former involve a plaintiff fired or subjected to some
other adverse employment action for the simple state of mind of enjoying the
company of people of all races or even preferring the company of those of a different
race. Holcomb was in a marriage, for example, not just interested in dating black
women as an abstract matter. Sexual orientation is a status, and while relationships
and acts can be homosexual in nature, homosexual acts and relationships are distinct
from the status of being a homosexual—to say it any other way is to define
homosexuality using the very same stereotyping the Court condemned in Price
Waterhouse. See Evans, 850 F.3d 1259-60 (William Pryor, J., concurring).
9 Jay Michaelson, Chaos, Law, and God: The Religious Meanings of Homosexuality, 15 MICH. J. GENDER & L. 41, 63, 63 n.83 (2008) (discussing the distinction from the perspective of Jewish scholars, including Maimonides). 10 Here is as good a place as any to dispose of Loving v. Virginia, 388 U.S. 1 (1967). Notwithstanding that Loving is a case about the Constitution, it addressed a state law that prohibited only whites from marrying other races while permitting intermarriage among nonwhite races. Id. at 11. Many have made far too much of its footnote 11, wherein the Court tells us that it would be exactly the same case if no one had heard of white supremacy—easy for the Court to resolve a hypothetical not presented and so outlandish. That is not meaningful legal reasoning or a holding, it is what could only be charitably described as a throwaway. In all events, Loving is not about Title VII and is of little use in this context. Hively, 853 F.3d at 356 (Posner, J., concurring).
17

With interracial association cases on one end of a spectrum—nearly always racist—and sexual orientation cases on the other—frequently not sexist—that leaves the thorny issue of “sex stereotyping” and Price Waterhouse. It is the fact finder’s responsibility in these cases to sort the prohibited, sex discrimination, from the permitted (under Title VII), sexual orientation discrimination. The latter cannot, of itself, state a claim for which Title VII relief can be granted. Discrimination on the basis of sexual orientation is not always sex discrimination provable via evidence of sex stereotyping. IV. Discrimination On The Basis Of Sexual Orientation Is Not, Ipso Facto,
Actionable Sex Stereotyping Under Price Waterhouse The view that “sex stereotyping” is its own standalone claim of sex discrimination rather than just possible evidence of sex discrimination, permeates the argument of the Hively majority, Zarda, and her supporters. See, e.g., Hively, 853 F.3d at 345 (citing Price Waterhouse and alleging that Title VII reaches “discrimination based on a person’s failure to conform to a certain set of gender stereotypes”); Lambda Br. at 8-9 (same). Price Waterhouse does not support such a free-standing claim because it holds only that sex stereotyping is possible evidence of sex discrimination. Hopkins was aggressive and the managers did not like aggressive women. The stereotypical statement alone was not enough for a claim. But the stereotypical statement about aggressive women together with evidence that Hopkins’s job “require[d] this trait”— i.e., aggressiveness—was enough. Price Waterhouse, 490 U.S. at 251 (“An employer who
18

objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.” (emphasis added)).11 Some courts have read Price Waterhouse as establishing a separate actionable claim of “sex stereotyping,” and this en banc Court has the opportunity to wipe the slate clean and put an end to much of this confusion right now. “‘Sex stereotyping’ should not be regarded as a form of sex discrimination, though it will sometimes, as in the Hopkins case, be evidence of sex discrimination.” Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1068 (7th Cir. 2003) (Posner, J., concurring).
To put this into perspective, imagine an employer who thinks black nail polish on women is unacceptable. If she fires the plaintiff because she wears black nail polish, that looks like sex stereotyping, but is it sex discrimination? One way it might be sex discrimination under Price Waterhouse if wearing black nail polish is a job requirement—i.e. men are permitted to do so and in fact have to do so in order to get that promotion. But just having an idea of how one sex should act is not, standing alone, actionable sex discrimination under Price Waterhouse, which is quite a bit more narrow than it is being read. Hively, 853 F.3d at 371 (Sykes, J., dissenting).
Or take a sex-neutral employer policy of prohibiting cross-dressing. Is this sex discrimination? Men have to dress “like men,” and women have to dress “like
11 It is quite telling that this Court has only even mentioned this passage once, in Dawson v. Bumble & Bumble, 398 F.3d 211, 220-21 (2d Cir. 2005).
19

women.” According to Hively it absolutely is sex discrimination because if a woman wants to wear a skirt that is ok but if a man does it is not. Under Price Waterhouse it is not automatically sex discrimination even though there has been sex stereotyping. Men are not told they should not wear skirts and then the wearing of skirts made necessary to the job, for example. Put simply, if the true motive is sex neutral (as the motives behind many dress policies may be), that is not sex discrimination.
With Price Waterhouse considered for all that it says and not just half of it, that leaves its relevance to Title VII claims for discrimination brought by homosexuals. Sometimes these may be successful—because the plaintiff can prove sex discrimination and support that with evidence of sex stereotyping. An example would be an employer holding the view that men should not be effeminate but requiring such a disposition for promotion to management. A man (whether or not homosexual) put in that catch 22 has an actionable claim of sex discrimination. Supportive evidence could be statements stereotyping men as masculine and women as feminine. But if instead the employer fires effeminate male and female homosexuals, and masculine male and female homosexuals, that looks like permitted (under Title VII) discrimination on the basis of sexual orientation.12
12 The net result is that “I fired him because he is gay” is a complete defense to Title VII liability while it is also an admission of liability under the laws of the three states in this Circuit.
20

Turning to this case. Zarda claims he was fired for being gay. Does any proffered evidence of sex stereotyping tend to show discrimination against Zarda as a man? For example, was sexual attraction to men made necessary to being promoted? Was there evidence of misandry? Evidently not. Therefore it was not unlawful sex discrimination to fire him under Price Waterhouse. Case closed.
CONCLUSION For this Court to depart from the original public meaning of Title VII would not only constitute disobedience to the law of statutory interpretation, but would also upend our political order. Yet again the judiciary is being called upon to take away from the people their right of self-determination—to short circuit the political process and decide winners and losers. It is not an act of judicial courage to absolve Congress from the responsibility to cast votes, perhaps difficult for some members, on this issue. Liberty dies to thunderous applause, and no doubt a decision by this Court in favor of Zarda will be met with such a response. That is not a reason for acquiescence; it is a reason for skepticism.
21

Dated: July 26, 2017

Respectfully Submitted,
By: /s/ Adam K. Mortara Adam K. Mortara (application for admission pending) BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 (312) 494-4400
Court-Appointed Amicus Curiae

22

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) and 29(a)(5), LR 29.1(c), and this Court’s Order dated June 19, 2017 [Dkt. 289] because it contains 5,699 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word version 2016 in 14-point Garamond.

Dated: July 26, 2017

By: /s/ Adam K. Mortara Adam K. Mortara (application for admission pending) BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 (312) 494-4400
Court-Appointed Amicus Curiae

23

 
 15-3775

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Plaintiffs-Appellants
-againstALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD, Defendants-Appellees
En Banc Rehearing of the Panel Opinion Reported at 855 F. 3d. 76 (2d. Cir. 2017)

APPELLEES’ BRIEF

ZABELL & ASSOCIATES, P.C. Saul D. Zabell, Esq. Attorney for Defendants-Appellees 1 Corporate Dr., Suite 103 Bohemia, NY 11716 (631) 589-7242

Filed: July 26, 2017

RULE 26.1 STATEMENT
Pursuant Rule 26.1 of the Federal Rules of Appellate Procedure and to enable Judges of this Court to evaluate possible disqualification or recusal, the undersigned counsel for Defendants states as follows:
Defendant Altitude Express, Inc., d/b/a Skydive Long Island, is a domestic business corporation organized and existing under the laws of the State ofNew York.
Defendant Altitude Express, Inc., d/b/a Skydive Long Island is not a governmental entity, there are no parent corporations, nor does any publicly held corporation hold 10% of its stock.

Dated: Bohemia, New York July 28, 2017

L\BELL & ASSOCIATES, P.C.

Attorneysfor Appellees

a

Digitally signed by Saul D. Zabel!

By:~~-=~=~=·~~~'Da-te:-20~17~.07~.28~09~:16~:09~-0~4'0-0'

Saul D. Zabell (SZ 2738)

Fax: (631) 563-7475

szabell@laborlawsny.com

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................ ii
ISSUE PRESENTED ............................................................................................................... 1
JURISDICTION .....................................................................................................................2
PROCEDURAL IDSTORY ...................................................................................................4
STATEMENT OF FACT ........................................................................................................7
ARGUMENT .......................................................................................................................... 15
1. TITLE VII DOES NOT EXTEND TO SEXUAL ORIENTATION ..................... 15
2. TIDS PANEL LACKS AUTHORITY TO RENDER AN ADVISORY OPINION .......................................................................................16
i. ADVISORY OPINIONS ARE IMPERMISSABLE ................................... 17
ii. NO RELIEF FLOWS FROM THE COURT'S ANTICIPATED AFFIRMATIVE ANSWER ............................:.............................................18
a. FILING AN EEOC CHARGE IS A MANDATORY PREREQUISITE TO PURSUING RELEIF UNDER TITLE VII....20
b. WHERE THERE EXISTS AN EXPRESS DENIAL OF A CLAIM WITHIN AN EEOC CHARGE, SUCH A CLAIM CANNOT BE REASONABLY RELATED TO THE CHARGE ...............................24
c. AN AFFIRMATIVE ANSWER OVERTURNS A DECISION BY THE LOWER COURT WITHOUT CONSEQUENCE .....................28
iii. THE ESTATE LACKS STANDING TO INITIATE A TITLE VII ACTION ON BEHALF OF ZARDA ...........................................................30
CONCLUSION ......................................................................................................................35

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT
Aetna Life Ins. Co. v. Haworth 300 U.S. '227 (1937) ................................................................ 17
Chafin v. Chafin
568U.S. 165(2013).............................................................16,17
Clapper v. Amnesty Int'l USA
568 U.S. 398 (2013) ..................................................................16
DaimlerChrysler Corp. v. Cuna
547 U.S. 332 (2006) ..................................................................16
Lewis v. Continental Bank Corp.
494 U.S. 472 (1990) ............................................................17, 35
Lujan v. Defenders a/Wildlife
504 U.S. 555 (1992) .................................................................16
Monsanto Co. v. Geertson Seed Farms
561U.S.139 (2010) .................................................................16
North Carolina v. Rice
404 U.S. 244 (1971) .............................................................17, 35
Raines v. Byrd
521 U.S. 811 (1997) .................................................................16
Steel Co. v. Citizens for a Better Env't
523 U.S. 83, 94 (1998) ...............................................................3
Summers v. Earth Island Institute,
555 U.S. 488 (2009) ..................................................................16
II

Freiser v. Newkirk,
422 U.S. 395 (1975) ............................................................17, 18
U.S. Nat. Bank ofOregon v. Indep. Ins. Agents ofAm., Inc.,
508 U.S. 439 (1993) .................................................................17
Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982) .................................................................21
UNITED STATES COURT OF APPEALS
Butts v. City ofNew York Dep't ofHaus. Pres. & Dev't,
990F.2d1397 (2d Cir.1993) ..................................................24-27
Carter v. New Venture Gear, Inc.,
310 F. App'x 454 (2d Cir. 2009) .................................................26
Caribbean Trading & Fidelity Corp. v. Nigerian Nat'l Petroleum Corp.,
948 F.2d 111 (2d Cir. 1991) ........................................................19
Cerbone v. Int'l Ladies' Garment Workers' Union,
768 F.2d 45 (2d Cir. 1985) .........................................................22
Chin v. Port Auth. ofN. Y. & New Jersey,
685F.3d135 (2d Cir. 2012) ...................................................20, 22
Deravin v. Kerik,
335F.3d195 (2d Cir. 2003) .................................................. .26-27
Fitzgerald v. Henderson,
251F.3d345 (2d Cir. 2001) ....................................................25-26
Freeman v. Oakland Unified Sch. Dist.,
291 F.3d 632 (9th Cir. 2002) ........................................................26
Hively v. Ivy Tech Cmty. Coll. of Indiana,
853 F.3d 339 (7th Cir. 2017) ...................................................23, 27
111

Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't ofHealth & Human Servs.,
607 F.3d 951 (2d. Cir. 2010) ............................................................3, 18
James v. Home Constr. Co. ofMobile,
621F.2d727 (5th Cir.1980).......................................................32
Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006), cert. denied, 549 U.S. 1282 (2007) .................3
Kilgo v. Bowman Transp., Inc.,
789 F.2d 859 (11th Cir. 1986) ......................................................32
Manway Constr. Co. v. Housing Auth. ofthe City ofHartford,
711F.2d501 (2d Cir.1983) .........................................................3
Nat'l Union Fire Ins. Co. ofPittsburgh, PA. v. Stroh Companies, Inc.,
265 F.3d 97 (2d Cir. 2001) .........................................................19
Pridegon v. Gates Credit Union,
683 F.2d 182 (7th Cir. 1982).......................................................30
S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc.,
24 F.3d 427 (2d Cir.1994)...........................................................2
Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) ..................................................... 6, 15-18, 29I 35
Slade for Estate ofSlade v. U.S. Postal Serv.,
952F.2d 357 (10th Cir.1991) ......................................................32
Smith v. No. 2 Galesburg Crown Finance Corp.,
615 F.2d 407 (7th Cir.1980) .......................................................30
Williams v. N. Y. City Haus. Auth.,
458 F.3d 67 (2d Cir. 2006) ................................................ .21, 24-27
IV

UNITED STATES DISTRICT COURT
Acebal v. United States
60 Fed. Cl. 551, 555 (Fed. 0. 2004) .............................................30
Asklar v. Honeywell, Inc.,
95 F.R.D. 419 (D. Conn.1982) ....................................................30
Bligh-Glover v. Rizzo,
2012 WL4506029 (N.D. Ohio 2012) .............................................32
Estate of Trivanovich v. Gulfport-Biloxi Regional Airport Auth.,
2008 WL2779441 (S.D. Miss. 2008) ...................................................33
Estwick v. U.S.Air Shuttle,
950 F. Supp. 493 (E.D.N.Y. 1996) ............................................30, 33
Grimes-Jenkins v. Consol. Edison Co. ofN.Y., Inc.,
2017 WL 2258374 (S.D.N.Y. May 22, 2017) ..............................20, 22
Grimes-Jenkins v. Consol. Edison Co. ofN. Y., Inc.,
2017 WL 2709747 (S.D.N.Y. June 22, 2017) ..............................20, 21
Khan v. Grotnes Metalforming Systems, Inc.,
679 F. Supp. 751 (N.D. Ill. 1988) ..................................................30
Polsby v. St. Martin's Press,
2000 WL 98057 (S.D.N.Y. 2000) ..................................................19
Pueschel v. Veneman,
185 F. Supp.2d 566 (D. Md. 2002) ............................................33-34
Semper v. N. Y. Methodist Hosp.,
786 F. Supp. 2d 566 (E.D.N.Y. 2011) .......................................... .22
v

Weeg ex rel. Weeg v. Ortiz and Associates, Inc.,
556F.Supp.2d1188 (D. Or. 2008)............................................. 33
Wright ex rel. Wright v. United States,
914 F. Supp. 2d 837 (S.D. Miss. 2012) .....................................32-34 STATUTES & REGULATIONS
Title VII ofthe Civil Rights Act 42 U.S.C. § 2000e, et seq. ("Title VII") ................................................passim
New York State Human Rights Law
NY EXEC. LAW §296, et seq. ("NYSHRL") ............................passim
ADMINISTRATIVE DECISIONS
Baldwin v. Foxx,
EEOC 0120133080, 2015 WL 4397641 Guly 16, 2015) .........................5, 29
Estate of Donnie Powell, Complainant,
EEOC DOC 01991835, 2001WL135460 (Feb. 6, 2001) ........................31
Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency,
E.E.O.C. DOC 657792 (Nov. 6, 1996) .....................................31, 34
Margaret Hanley v. Department of Veterans Affairs,
EEOC Appeal No. 01890296(April11, 1989) ................................31
VI

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
)(----------------------------------------------------------------)( MELISSA ZARDA & WILLIAM MOORE, EXECUTORS,
ESTATE OF DONALD ZARDA Plaintiff-Appellant, -against-
ALTITUDE EXPRESS & RAYMOND MAYNARD, Defendants-Appellees
)(----------------------------------------------------------------)( ISSUE PRESENTED
This en bane panel has been convened to address a single question: "Does Title Vil of the Civil Rights Act of 1964 prohibit discrimination on the basis of se)(Ual orientation through its prohibition of discrimination 'because of ... Se)('?."
The facts of this case are ine)(orably linked with the legal question presented - facts which establish that, despite this laudable attempt to remedy a long-standing denial of protection to a now recognized and comparatively vulnerable class of its citizens, the Court's inevitable answer in the affirmative results in a decision from which no relief flows. Any
1

answer in the affirmative to the question presented would be a prohibited advisory opinion.
JURISDICTION Appellants, Melissa Zarda and William Allen Moore, Jr. as CoIndependent Executors of the Estate of Donald Zarda, ("Appellants"),on behalf of Donald Zarda, who is deceased ("Zarda", or "Appellant"), have
been granted en bane review of the decision rendered by the United States Court of Appeals for the Second Circuit, August Term, 2016, decided on April 18, 2017. Altitude Express d/b/ a Skydive Long Island and Raymond Maynard ("Appellees", "SDLI" or "Maynard") do not contest or otherwise dispute the jurisdiction of the underlying District Court, or the Court of Appeals.
Appellees do challenge the jurisdiction of this en bane panel to determine a legal question upon which no relief can be granted. Such a challenge to subject matter jurisdiction must be considered by this panel, despite the narrow legal question posed. S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 430-31 (2d Cir. 1994) ("It is axiomatic that 'in our federal system of limited jurisdiction any party or the court suasponte, at any stage of the proceedings, may raise the question of
2

whether the court has subject matter jurisdiction'; finding that argument regarding jurisdiction raised for first time on appeal was permissible) (citing Manway Constr. Co. v. Housing Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir.1983)). As this Court discussed within the last decade:
"[The Court] ha[s] an independent obligation to consider the presence or absence of subject matter jurisdiction suasponte." Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir.2006), cert. denied, 549 U.S. 1282 (2007). Our inquiry to ascertain whether we have subject matter jurisdiction ordinarily precedes our analysis of the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Serus., 607 F.3d 951, 955 (2d. Cir. 2010) (emphasis added). Here, this panel must examine whether its findings as to the legal question posed will result in any actualized relief, or whether rendering a decision constitutes an impermissible advisory opinion. We respectfully submit this panel can reach no conclusion other than: 1) an opinion rendered in this case would be advisory in nature; 2) this panel lacks the constitutional authority to issue such an advisory opinion; and, 3) as such, this appeal must be dismissed, by law, for lack of standing and jurisdiction.
3

PROCEDURAL HISTORY On August 6, 2010, Zarda filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Appellees' Appendix (hereafter "SA"), SA 001). Zarda's EEOC charge states, in relevant part, that "my claim is because I did not conform my appearance and behavior to sex stereotypes, I suffered adverse employment action, and was discriminated against, at least in part, because of my sex." Within that same paragraph, Zarda stated "I am not making this charge on the grounds of my sexual orientation."(SA 003) (emphasis added). On September 23, 2010, Zarda filed a Complaint, Index#: 10-cv-4334, in the United States Court of the Eastern District of New York. Zarda's original Complaint alleged four (4) separate violations of law: 1) a violation of Title VII, alleging discrimination based on failure to conform to sex stereotypes; 2) a violation of the New York State Human Rights Law, alleging sexual orientation discrimination; 3) a violation of the Fair Labor Standards Act; and 4) a violation of the New York Labor Law. (SA 009) Zarda filed an Amended Complaint on March 11, 2011. The Amended Complaint added two (2) additional causes of action: 1) gender
4

discrimination under the New York State Human Rights Law; and, 2) an additional violation under the New York Labor Law. (JA 065)
Between February and May of 2013, Zarda and Appellants submitted various competing Motions for Summary Judgment (both partial and full). On March 28, 2014, Judge Bianco granted Defendants-Appellees' motion as to Zarda's claims of gender stereotype discrimination, hostile work environment, and failure to pay overtime. (SA 007)
On March 28, 2014, Appellant filed his Second Amended Complaint. He again claimed the following violations: 1) sex stereotype discrimination under Title VII; 2) sexual orientation discrimination under the NYSHRL; 3) gender discrimination under the NYSHRL; and, 4) failure to pay minimum wage under the NYLL. (SA 021) Conspicuously absent from the EEOC charge and each filed pleading is an allegation of sexual orientation discrimination under Title VII.
On August 17, 2015, Zarda filed a motion seeking reconsideration of the dismissal of his Title VII claim. Zarda based that motion to reconsider upon the EEOC's decision in Baldwin v. Foxx, Appeal No.: 0120133080, in which the agency found that sexual orientation discrimination is sex discrimination. Tellingly, Zarda began his memorandum of support with
5

the following: "You can be the first judge to hold that Title VII protects sexual orientation discrimination." However, the Title VII claim that the Judge had previously dismissed was a sexual stereotype claim, not a sexual orientation discrimination claim. CTA 716) Not only did Zarda, in an EEOC charge, a Complaint, an Amended Complaint, and a Second Amended Complaint, fail to allege sexual orientation discrimination under Title VII, he went so far as to expressly disavow such a claim within his EEOC charge. On October 13, 2015, the District Court Judge denied Plaintiff's motion to reconsider based upon the law as it stood under Simonton, without addressing the issue that Plaintiff was attempting to revive a claim that was never plead or charged to the EEOC.CTA 716)
Zarda subsequently appealed on, among other grounds, the basis that Simonton and its progeny should be overruled, or, alternatively, be held inconsistent with the current state of the law. The Court declined to revisit Simonton and, in the course of doing so, determined an en bane review would be necessary to overturn prior Circuit precedent.1 CTA 718) Zarda then filed a petition for en bane review, which was granted.
1 The Court found no merit as to the other grounds raised on appeal. CTA 718)
6

STATEMENT OF FACT This case, at the time of its original filing, was a straightforward dispute involving discrimination claims arising in the workplace. The central issue at hand was, and remains, whether the Appellant, Donald Zarda, was in fact subject to impermissible discrimination, and whether the basis for the alleged discrimination is protected under Title VII of the Civil Rights Act. The operative facts forming the basis of Zarda's allegations have already been tried before a jury of his peers within the context of the New York State Human Rights Law, NY EXEC. LAW §296, et seq. ("NYSHRL"). Upon the completion of a fair and proper trial, Zarda's claims were ultimately determined to be unfounded. Here, should this Court determine that existing precedent regarding sexual orientation discrimination under Title VII has outlived both the logic and reason from which it was derived, Appellants' arguments must still be rejected by the Court for the following reasons:
7

1) Zarda presented his allegations of discrimination to a jury of his peers under the corresponding state statute, resulting in no finding against Defendants-Appellees;
2) Zarda expressly disavowed a claim of sexual orientation discrimination under Title VII in his EEOC Charge, and never raised such a claim in his Complaint, his Amended
Complaint, or his Second Amended Complaint - ipso facto,
regardless of this panel's holding, Zarda is precluded from pursuing such a claim; and,
3) Zarda's estate lacks legal standing to raise a new Title VII allegation that was never raised by Zarda prior to his death.
Zarda began this litigation by alleging, in his Amended Complaint,
violations of New York State Human Rights Law, Title VII and New York
State Labor Law. (JA 0025 - JA 0040) Among those causes of action, Zarda
claimed he was discharged because of a homophobic customer. (JA 0025)
Specifically, Zarda claimed that he had said to a customer that "You don't
have to worry about us being so close because I'm gay." (JA 0029) Zarda
alleged that he was terminated for "mentioning the fact that he was gay to
a passenger" and that he had touched a passenger inappropriately. (JA
0031 - JA 0032) However, at the time the Amended Complaint was filed,
Zarda was unaware of the existence of a customer complaint. (JA 0033)
Zarda alleged in his Amended Complaint that he was fired from his
8

position because his "behavior did not conform to sex stereotypes." (JA 0035)
At summary judgment, Zarda's "gender stereotype discrimination, hostile work environment, and overtime claims" were each summarily dismissed. Zarda's "sexual orientation discrimination claim" based upon his termination under New York State law, and minimum wage claim under New York State law were permitted to go to trial. (JA 0672) Zarda then moved for reconsideration of the dismissal of his gender stereotype discrimination and hostile work environment claims. (JA 0021) By decision dated October 13, 2015, the District Court terminated Zarda's application for reconsideration of the Summary Judgment Decision. (JA 716)
Zarda testified at trial by and through his deposition testimony which was read into evidence. Zarda filed an EEOC charge indicating that "I'm not making this charge based on my sexual orientation." (SA 003) With regard to his suspension and ultimate termination, Zarda testified that he was asked "a lot of questions" about the tandem "jump with Miss Rosanna" and that he did not remember a specific jump at that time to which he was referring. (JA 1164 - 1165, JA 1330, JA 1331) Zarda acknowledged that Maynard, the owner of Skydive Long Island, was
9

"investigating what I knew about" the complaint. (JA 1166) Zarda acknowledged that his colleagues referred to him as "Gay Don" and that he "wasn't offended by that." Further, he testified that, with regards to the workplace, he was treated "like anybody else." (JA 1167) Zarda testified that his outward appearance lead people to believe that he was heterosexual and that he was frequently mistaken for being straight and that such a mistake did not offend him. (JA 1276 - JA 1277)
Zarda opined about his 2001 termination from SkyDive Long Island, "From the best I can recall, because Ray didn't discuss it with me, it had something to do with a customer being unhappy about not being able to do flips out of the airplane, or something that they wanted me to do out of the aircraft." (JA 1169, JA 1310, JA 1325) Zarda testified that he was rehired in 2009, and that Appellees rehired him with full knowledge of his sexuality and that he had a positive working relationship with his colleagues. (JA 1177) Zarda conceded he got along well with all of his colleagues in 2009. (JA 1174) Zarda enjoyed working at Skydive Long Island until he broke his ankle in 2009, at which point, he stopped working on July 2, 2009. (JA 1175)
In 2010, Zarda confirmed he did not have any negative interactions with any of his coworkers and none of his co-workers brought up his
10

sexuality with the intent to hurt his feelings, or to be malicious. (JA 1178, JA 1315) Zarda testified that Ray Maynard was taking things out on him because his Workers' Compensation insurance went up drastically as a result of his claim for injury (JA 1312) and that being upset about the Workers' Compensation premium increasing and the complaints about were a possible basis for his termination. (JA 1313, JA 1314, JA 1316, JA 1325) That said, Zarda conceded he did not know what Maynard's motivation was for terminating him in 2010. (JA 1299)
Rosanna Orellana, the female tandem jump student who complained about Zarda's behavior, was called by Appellants to testify. She testified on direct examination that Zarda made a joke about her being strapped to another guy. "He made the joke. He said to my boyfriend, how do you feel that I'm strapped to your girlfriend or something along lines." (JA 1222) Ms. Orellana testified that Zarda whispered in her ear in a sensual manner. (JA 1232) On cross-examination, Orellana testified that the video introduced did not capture the entirety of the jump experience. (JA 1245) She testified that Zarda made her feel uncomfortable by, "whispering in my ear, so close in a sensual way. And after that he kept, you know putting his chin on my shoulder, which I found to be like, inappropriate." She
11

compared what she experienced to what she observed of her boyfriend's jump and testified that it made her "feel uncomfortable." (JA 1247) She also testified that Zarda put his hands on her legs and no other instructors behaved in such a manner. (JA 1247 - JA 1248) Orellana testified that Zarda made her feel uncomfortable and that his behavior was inappropriate. GA 1249) Orellana testified that instead of discussing the geography of what they were hovering over under the parachute that Zarda "was talking about his personal life. I can't remember the whole conversation, but something about a break up with his, you know, significant other and how upset he was because they had broken up. That's - - that was the main conversation during that period of time." GA 1253)
After the jump, Orellana discussed what transpired with her boyfriend. He also jumped on the day in question and they compared their respective experiences. At this point, Orellana expressed disappointment in her jump experience. GA 1255 - JA 1256) On re-direct, Orellana testified that she expected Zarda "to do his job and talk about what he is supposed to talk about, which is the surrounding area." I'm not really, you know, a therapist, so if he wanted to talk about his personal life and his personal
12

problems in his life, he should find a more appropriate time to talk about it, not while we are free falling with my life in his hands." (JA 1262 - JA 1263)
David Kengle testified on direct examination that he complained to Maynard about Zarda's behavior with his girlfriend, Orellana. (JA 1405 JA 1406, JA 1410) Kengle testified, "I don't remember exactly the conversation that we had. I made a complaint based on what I felt was inappropriate and the story that my girlfriend Rosanna gave me at the time. Exactly what I told him, I don't remember the details, but he did refer to his personal life, referenced his personal life in some capacity. I felt that added inappropriateness, and that was my complaint." (JA 1407) Kengle went on to explain that he complained about Zarda acting inappropriately in that he was flirtatious with Orellana, kept his hands on her hips, or thigh area throughout the jump, and was gesturing to his mouth. (JA 1410 - JA 1412)
On direct examination by Appellants' counsel, Maynard testified that Zarda made him aware of his sexual orientation at the time of his original hiring in 2001. (JA 1466). Maynard acknowledged that he received a complaint about Zarda from Kengle. (JA 1476) The complaint included that Orellana experienced touching that made her feel uncomfortable. (JA 1478)
13

Further, the complaint detailed inappropriate discussions between Zarda and Orellana that occurred during the fall from the plane. (JA 1482, JA 1543) Maynard testified that after he received the complaint, he started his investigation. (JA 1544) As part of his investigation, Maynard asked Zarda questions about the jump which he could not recall. He also testified that Zarda had a history of customer complaints and was spoken to twice before about these issues. (JA 1482) After Maynard viewed the videotape of the jump, its content corroborated the facts forming the basis of Kengle's complaint. (JA 1482, JA 1545)
Wayne Burrell testified that he was employed at Skydive Long Island for twenty-four (24) years as an instructor, and that he had worked with Zarda. (JA 1514) Burrell testified that he observed Zarda "being a little unprofessional, rude not talking to them, not being friendly" with female jumpers and that he had mentioned his observations to Maynard. (JA 1515 -1516)
Duncan Shaw testified that he worked at Skydive Long Island for fifteen (15) years, and that he worked with Zarda. (JA 1575 - 1576) He testified that Zarda introduced himself to others as, "Gay Don" and frequently discussed his sexual orientation in front of co-workers and, at
14

times, went into detail about his relationships. (JA 1577, JA 1578 - JA 1580, JA 1586)
Curt Kellinger testified that he had worked at Skydive Long Island since 1992, up until a couple of years before his 2015 testimony. (JA 1626) Kellinger knew Zarda and was instrumental in his hire at Skydive. (JA 1627 - JA 1628) Kellinger testified that Zarda disclosed his sexual orientation to him at their first meeting. (JA 1628, JA 1629)
The trial resulted in a verdict for the Defense, with the jury finding that Zarda's sexual orientation was not the but-for cause of his termination.
ARGUMENT 1. TITLE VII DOES NOT EXTEND TO SEXUAL ORIENTATION. The question of whether Title VII encompasses sexual orientation discrimination was previously addressed, at-length, on appeal. For sake of brevity, Appellees respectfully direct this panel to our arguments raised before the Second Circuit, all of which are attached hereto as SA 049. For all the reasons included therein, based upon the well-reasoned decision in the face of facts far more compelling than any alleged here - issued in
Simonton, we respectfully submit that this panel should find, as all of its sister courts (except the Seventh Circuit) have, that Title VII does not
15

ecompass sexual orientation discrimination. Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).
2. THIS PANEL LACKS AUTHORITY TO RENDER AN ADVISORY OPINION. "No principle is more fundamental to the judiciary's proper role in
our system of government than the constitutional limitation of federalcourt jurisdiction to actual cases or controversies."Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 492-493 (2009)). To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Clapper, at 409 (emphasis added) (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010); Summers, at 493; Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-561 (1992).
As stated by the Supreme Court in Chafin: Article III of the Constitution restricts the power of federal courts to "Cases" and "Controversies." Accordingly, "[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the
16

defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp.,494 U.S. 472, 477 (1990). Federal courts may not "decide questions that cannot affect the rights of litigants in the case before them" or give "opinion[s] advising what the law would be upon a hypothetical state of facts." Ibid. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam); internal quotation marks omitted). The "case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate." Lewis, 494 U.S., at 477 (emphasis added).
Chafin v. Chafin, 568 U.S. 165, 171-72 (2013).
Here, should the Court answer the question presented in the
affirmative, no relief flows to Zarda. An affirmative answer does not
revive any allegation contained within the pleadings, entitle Zarda to a
new trial, or provide any actionable relief beyond advising that Simonton is
no longer good law.
i. ADVISORY OPINIONS ARE IMPERMISSIBLE
It is well-settled that "a federal court has neither the power to
render advisory opinions nor 'to decide questions that cannot affect the
rights of litigants in the case before them."' Freiser v. Newkirk, 422 U.S.
395, 401 (1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241
(1937)); see also U.S. Nat. Bank of Oregon v. Indep. Ins. Agents ofAm., Inc., 508
17

U.S. 439, 446, (1993) ("federal court [lacks] the power to render advisory opinions") (emphasis added).
A decision of the issue presented before this en bane panel has no effect on "the rights of litigants in the case before them." See Prieser, at 401. Should this panel reach the appropriate conclusion that no relief flows from their finding of the question of law presented, then this panel must dismiss the appeal for lack of subject matter jurisdiction ipso jure.See Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 957 (2d Cir. 2010) (holding that there was "no basis upon which [the Court] can exercise jurisdiction" where any decision rendered would be advisory). While Simonton is undeniably outmoded, this panel cannot reach the merits of the appeal where no underlying jurisdiction exists.
ii. NO RELIEF FLOWS FROM THE COURT'S
ANTICIPATED AFFIRMATIVE ANSWER As stated above, should this panel ultimately rule in the affirmative, Zarda is still not entitled to any relief. Zarda's sexual discrimination claim arising under state law was previously defeated on the merits before a jury, and his purported Title VII sexual orientation discrimination claim was notplead at any time within the seven (7) years this case has been active
18

and pending: it was not charged within his EEOC filing (indeed, Zarda denied bringing a claim that he was discriminated on the grounds of his sexual orientation), nor plead in his Complaint, Amended Complaint, or Second Amended Complaint. GA 065; SA 009; SA 021).
The first time a potential putative sexual orientation discrimination claim arising under Title VII materialized was in Zarda's motion for reconsideration of the District Court's dismissal of his gender stereotype discrimination claim. GA 708; SA 035) It is a fundamental tenet of Federal Practice that motions for reconsideration are not the place for newly raised facts, issues, or arguments - let alone wholly new claims which are not alleged in any pleadings, and expressly disavowed in an EEOC charge. See generally Nat'l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Companies, Inc., 265 F.3d 97, 115 (2d Cir. 2001) (citing Caribbean Trading & Fidelity Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991) (holding that
'
predecessor to Rule 6.3 "preclud[es] arguments raised for the first time on a motion for reconsideration"), cert. denied, 504 U.S. 910, (1992); Polsby v. St. Martin's Press, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) ("On such a [Local Rule 6.3] motion, a party may not advance new facts, issues, or
19

arguments not previously presented to the Court." (internal quotation marks omitted)).
Even assuming, arguendo, that a claim plead for the first time in a motion to reconsider could be properly considered by the District Court, Zarda's purported Title VII sexual orientation claim still fails to satisfy prerequisites necessary to advance such a claim in Federal Court. Infra, at 20. Consequently, we maintain that this panel is precluded from allowing Plaintiff-Appellant to bring forth an uncharged and unpled claim some seven (7) years after he expressly disclaimed its existence under penalty of peIJUry.
a. FILING AN EEOC CHARGE IS A MANDATORY PREREQUISITE TO PURSUING RELIEF UNDER TITLE VII.
It is well-settled that filing a timely EEOC charge is a precondition to filing a Title VII action before a District Court. Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135, 146 (2d Cir. 2012) ("As a prerequisite to filing suit under Title VII, a private plaintiff must first file a timely charge with the EEOC.") (citing 42 U.S.C. § 2000e-5(e)(l), (f)(l)); Grimes-Jenkins v. Consol. Edison Co. of N.Y., Inc., 2017 WL 2258374, at *4 (S.D.N.Y. May 22, 2017), report and recommendation adopted sub nom. SHERRY GRIMES-
20

JENKINS, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant., 2017 WL 2709747 (S.D.N.Y. June 22, 2017); see also Williams v. N. Y. City Haus. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Exhaustion is ordinarily" an essential element" of a Title VII claim).
While filing an EEOC charge is a prerequisite to filing a claim in Federal Court, the Courts treat the requirement similarly to a statute of limitations; subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.")
However, since a Title VII sexual orientation discrimination claim was never brought by Zarda in the lower court proceedings, the doctrines of waiver, estoppel, and equitable tolling simply cannot apply here. Defendants-Appellees cannot be deemed to have waived their rights or be estopped from asserting a valid defense in response to a claim that, until an inappropriately argued motion for reconsideration, was never raised or plead.
21

The time in which Zarda can properly file a new or amended EEOC charge related to sexual orientation discrimination cannot be deemed equitably tolled."The doctrine of equitable tolling rests on the assumption that a statute of limitations will not run against a plaintiff unaware of her cause of action." Semper v. N. Y. Methodist Hasp., 786 F. Supp. 2d 566 (E.D.N.Y. 2011) (denying equitable tolling and finding Plaintiff's Title VII claim time-barred for failure to file timely EEOC charge) (citing Cerbone v. Int'l Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2d Cir.1985) (internal citations omitted)). Here, Zarda was fully aware of his potential cause of action and expressly denied the existence of a sexual orientation discrimination claim.
As waiver, estoppel, and equitable tolling do not apply under the current circumstances, Zarda is barred from advancing a sexual orientation claim under Title VII where he has failed to file an EEOC charge alleging same. Chin, at 146; Grimes-Jenkins, at *4. Should this Court find that Simonton must be overturned, and Title VII prohibits sexual orientation discrimination, Zarda still lacks standing to bring his claim in the District Court.
22

Zarda's failure to properly plead a claim distinguishes the instant case from the facts of Hively - the very case upon which Zarda principally relies to support his contentions on appeal. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). In Hively, an important event transpired, wholly distinct from the facts of this case - the Plaintiff properly raised her sexual orientation discrimination claim in her EEOC Charge:
Believing that Ivy Tech was spurning her because of her sexual orientation, she filed a pro se charge with the Equal Employment Opportunity Commission on December 13, 2013. It was short and to the point:
I have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am being blocked from fulltime employment without just cause. I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated. Hively, at 341 (emphasis added). The Hively Plaintiff then received a notice of right to sue, filed her complaint in Federal Court, and was subject to a 12(b)(6) motion for dismissal, which was granted. Hively, at 345. Plaintiff then appealed her preserved issue of law upon which relief could be properly granted.
23

By way of contrast, in the instant case, Zarda expressly disavowed a claim of sexual orientation discrimination in his EEOC charge. (SA 003). Following receipt of his notice of right to sue from the EEOC, Zarda filed his complaint in Federal Court, which contained no allegation that he was in any way discriminated against because of his sexual orientation in violation of Title VII. (SA 009). Zarda failed to allege sexual orientation discrimination under Title VII in his Amended Complaint or Second Amended Complaint as well. GA 065; SA 021). These facts are fatal to Zarda's stated position.
b. WHERE THERE EXISTS AN EXPRESS DENIAL OF A CLAIM WITHIN AN EEOC CHARGE, SUCH A CLAIM CANNOT BE REASONABLY RELATED TO THE CHARGE
When a claim is not raised within the four corners of an EEOC complaint, they may still be brought in in a Second Circuit Court if they are "reasonably related" to the claim filed with the agency. Williams v. N.Y. City Haus. Auth., 458 F.3d 67, 70 (2d Cir. 2006) ("Oaims not raised in an EEOC complaint, however, may be brought in federal court if they are "reasonably related" to the claim filed with the agency") (citing Butts v. City of New York Dep't of Haus. Pres. & Dev't, 990 F.2d 1397, 1402 (2d Cir.1993),
24

superceded by statute on other grounds, Civ. Rights Act of 1991, Pub. L. No.

102-166, 105 Stat. 1071). Zarda does not qualify for this exception to the

rule requiring administrative exhaustion.

Three scenarios exist in which the Second Circuit has recognized

uncharged claims to be "reasonably related":

a) "if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made";

b) a claim "alleging retaliation by an employer against an employee for filing an EEOC charge"; and,

c) a claim where the plaintiff "alleges further incidents of

discrimination carried out in precisely the same manner

alleged

in

the

EEOC

charge."

Williams, at 70 (2d Cir. 2006) (citing Fitzgerald v. Henderson, 251 F.3d 345,

359-60 (2d Cir.2001) (internal quotation marks omitted); Williams, at FN 1

(citing Butts, at 1402-3). Since Zarda does not allege retaliation or further

incidents of discrimination, "b)" and "c)" above cannot apply. Turning the

panel's attention to Zarda's sole remaining ground to allege that an

uncharged Title VII claim was "reasonably related" to his filed EEOC

complaint, "a)" listed above, current case law dictates that Zarda' s sexual

orientation claim cannot fall within this exception.

25

In determining "if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made," "[t]he central question is whether the complaint filed with the EEOC gave that agency 'adequate notice to investigate discrimination on both bases."' Williams, at 70 (citing Fitzgerald, at 359-60; Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002))) (emphasis added); see also Carter v. New Venture Gear, Inc., 310 F. App'x 454, 458 (2d Cir. 2009) (EEOC charge not "sufficiently related" as "[t]he EEOC was [] not "on notice" of [Plaintiff]'s gender-based complaints).
Importantly, The "reasonably related" exception to the exhaustion requirement " 'is essentially an allowance of loose pleading' and is based on the recognition that 'EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering.' Williams, at 70 (2d Cir. 2006) (citing Butts, at 1402). This concern for those acting without the aid of an attorney is inapplicable here. Zarda's
26

EEOC charge was prepared with the aid of his attorney, Gregory Antollino, who notarized the document. (SA 006).
Zarda's EEOC charge failed to give the agency "adequate notice to investigate discrimination on both bases." Williams, at 70; Deravin, at 201. Zarda expressly stated that "I am not making this charge on the grounds I was discriminated against on the grounds of my sexual orientation." (SA 003) (emphasis in original); compare with Hively, at 341 ("I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated"). Indeed, and perhaps not surprisingly, a review of Second Circuit precedent yields no reported instance of a Plaintiff expressly denying a claim within their EEOC charge and subsequently attempting to plead the very same claim.
The "primary purpose [of EEOC charge] is to alert the EEOC to the discrimination that a plaintiff claims [he] is suffering." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (citing Butts, at 1402. Here, and in contrast to Hively, Zarda expressly disclaimed a charge of sexual orientation
27

discrimination in his EEOC charge. It would both defy logic and reason to accept such a denial as placing the EEOC on notice.
We respectfully maintain this panel should be hesitant about setting binding Circuit precedent that Plaintiffs are permitted to expressly deny a claim exists in the content of an EEOC charge, only to reverse course and later allege the same. Such a holding would be incongruous with the legislative mandate of the EEOC and the statutory requirements of Title VII.
c. AN AFFIRMATIVE ANSWER OVERTURNS A DECISION BY THE LOWER COURT WITHOUT CONSEQUENCE
In the unlikely event this panel deems a sexual orientation discrimination claim to be reasonably related to Zarda's EEOC charge despite the express denial discussed supra - the fact remains that Zarda's Complaint, Amended Complaint, and Second Amended Complaint are each devoid of any allegation Zarda was discriminated against based upon his sexual orientation in violation of Title VII. (JA 065; SA 009; SA 021) The first time any allegation of sexual orientation discrimination under Title VII surfaced was within Zarda's motion to reconsider. (JA 708)
28

Again, Zarda based that motion to reconsider upon the EEOC's decision in Baldwin v. Foxx, Appeal No.: 0120133080, in which the agency found that sexual orientation discrimination is sex discrimination. Tellingly, Zarda began his memorandum of law in support with the following: "You can be the first judge to hold that Title VII protects sexual orientation discrimination." However, the Title VII claim that the Judge had previously dismissed was a sexual stereotype claim, not a sexual orientation discrimination claim. (JA 699) On October 13, 2015, the District Court Judge denied Plaintiff's motion to reconsider relying upon the law as it stood under Simonton, without addressing the issue that Plaintiff was attempting to revive a claim that was never plead. (JA 716) Should this panel find in the affirmative on the legal question presented, overturning the District Court's denial of Zarda's motion to reconsider, Zarda is still precluded from raising a claim never charged before the EEOC, never plead within any of his three (3) Complaints, and only raised (improperly) within the aforementioned motion.
29

iii. THE ESTATE LACKS STANDING TO INITIATE A
TITLE VII ACTION ON BEHALF OF ZARDA Absent some specific direction by Congress, whether an action created by federal statutory law survives the death of the plaintiff is a
matter of federal common law. Estwick v. U.S.Air Shuttle, 950 F. Supp. 493, 498 (E.D.N.Y. 1996) (citing Asklar v. Honeywell, Inc., 95 F.R.D. 419 (D.Conn.1982); see also Khan v. Grotnes Metalforming Systems, Inc., 679 F.Supp. 751 (N.D.lli.1988); Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir.1980), rev'd on other grounds sub nom. Pridegon v. Gates Credit Union, 683 F.2d 182 (7th Cir.1982); see also Acebal v. United States, 60 Fed. Cl. 551, 555 (Fed. Cl. 2004) ("In the absence of a specific statutory provision, courts have looked to federal common law to determine whether an action created by federal statute survives the death of a party").
Federal common law has long recognized that actions which are penal in nature do not survive the death of a party.Id. Title VII has been held to be remedial in nature, and therefore an action can survive the death of the Plaintiff. Id. (citing Asklar, at 423; Khan, at 755).
So, a Title Vll claim where the Plaintiff later dies during the proceedings may survive. The next logical question is: where, as
30

\
applicable here, a Plaintiff has not charged a Title VII claim before the EEOC prior to his death2, does federal common law allow his Estate to pursue such a claim?
The answer is "no." Federal common law contains no such provision allowing an estate to initiate a Title VII claim. The EEOC has held that an Estate is entitled to maintain a previously filed charge, but not initiate one on behalf of the deceased. Estate of Donnie Powell, Complainant, EEOC DOC 01991835, 2001 WL 135460, at *1 (Feb. 6, 2001) ("complainant's spouse, as complainant's personal representative, does not have standing to initiate the EEO process on behalf of her deceased husband."); Estate of Yao Hu, Appellant, EEOC DOC 01961473, 1996 WL 657792, at *1 (Nov. 6, 1996) ("While... federal employee's EEO complaint survives the death of the complainant in certain instances, the complaint in this case was not initiated by the employee but by his estate") (comparing Margaret Hanley v. Department of Veterans Affairs, EEOC Appeal No. 01890296 (April 11, 1989) ([Plaintiff] passed away after the filing of her complaint and the
2 As noted, supra, Zarda expressly disavowed any claim of sexual orientation discrimination in his EEOC Charge. Further, Zarda's Complaint, Amended Complaint, and Second Amended Complaint are each devoid of a sexual orientation discrimination charge under Title VII. (JA 065; SA 003; SA 009; SA 021)
31

Commission allowed her daughter and other heirs to continue to pursue the complaint on her behalf).
While the issue itself only been sporadically presented, Federal Courts have found that when a Plaintiff passes away during the pendency of a previously filed claim, the Title VII action survives. A pendingTitle VII action may be maintained by a deceased claimant's estate. Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 841 (S.D. Miss. 2012) (The numerous courts that have considered whether a Title VII cause of action survives the death of the employee have consistently held that a Title VII cause of action that has been commenced prior to the employee's death survives the employee's death; collecting cases) (emphasis added); Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir. 1991) (holding that pending Title VII claim survived the plaintiff's death and substituting the plaintiff's wife as plaintiff) (emphasis added); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir.1986) (holding that a pending action under Title VII survives under both federal common law and state law and that husband was properly substituted as plaintiff for his deceased wife) (emphasis added) (citing James v. Home Constr. Co. of Mobile, 621 F.2d 727, 729-30 (5th Cir.1980)); Bligh-Glover v. Rizzo, 2012 WL 4506029, *1 (N.D.Ohio
32

Sept.30, 2012) (finding that plaintiffs pending Title VII cause of action survived his death) (emphasis added); Estate of Trivanovich v. GulfportBiloxi Regional Airport Auth., 2008 WL 2779441, *2 (S.D.Miss. July 14, 2008) (finding that pending Title VII claim survived under either state or federal law and noting that Estate was substituted as plaintiff) (emphasis added).
In accord with the EEOC findings supra, Federal Courts which have considered the issue have found that "a Title VII cause of action survives the employee's death and may be brought by the personal representative of the employee's estate where the employee died after initiatingan administrative complaint for discrimination." Wright ex rel. Wright, at841 (emphasis added) (citing Weeg ex rel. Weeg v. Ortiz and Associates, Inc., 556 F.Supp.2d 1188 (D.Or.2008) (finding that court had jurisdiction over Title VII cause of action where employee died after filing EEOC charge but before suit and employee's estate completed exhaustion of administrative remedies begun by employee) (emphasis added); Estwick v. U.S. Air Shuttle, 950 F.Supp. 493, 498-99 (E.D.N.Y.1996) (finding that Title VII actions survived and wife had standing to file Title VII action after her husband died prior to EEOC's finding on husband's charge of discrimination) (emphasis added); Pueschel v. Veneman, 185 F.Supp.2d 566, 571-572
33

(D.Md.2002) (holding that Title VII claim pressed by personal
representative of deceased former employee may be adjudicated if.
employee effectively exhausted her administrative remedies and neither party is unfairly prejudiced by employee's death) (emphasis added).
This brings us to the crux legal principle which applies here: no Federal Court, panel, judge, magistrate, administrative law judge, or agency has !I£!I!.found an Estate may raise a new Title VII claim on behalf of a deceased Complainant which the deceased Complainant did not himself raise.See Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012)("While a complaint initiated by a federal employee may survive her death, the estate of that employee has no right to file a complaint") (quotingPueschel, at 571); (citing Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency, 1996 WL 657792 (E.E.O.C. Nov. 6, 1996) (holding that widow could not file discrimination claim on behalf of deceased husband where employee died before initiating complaint)).
Zarda did not raise a claim of sexual orientation discrimination under Title VII in his EEOC charge, his Complaint, his Amended Complaint, or his Second Amended Complaint. Should this panel find in the affirmative
34

on the lone question of law presented, Zarda's estate can obtain no relief, because they may not raise a Title VII claim, for the first time, which Zarda himself did not allege.
CONCLUSION Zarda failed to allege a sexual orientation discrimination claim arising under Title VII in either his EEOC charge or any pleading before the District Court. No Judge issued a decision which in any way precluded
Zarda from doing so. These facts distinguish the instant case from Hively and are fatal to Zarda's appeal.
Should this en bane panel find that Simonton and its progeny should be overturned, such a decision will not afford Zarda any relief. As the Supreme Court has repeatedly held in interpreting Article III of the Constitution, Federal courts may not /1 decide questions that cannot affect the rights of litigants in the case before them" or give "opinion[s] advising what the law would be upon a hypothetical state of facts." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244). Since this panel lacks jurisdiction sufficient to render a constitutionally valid decision, this panel must dismiss Zarda's appeal.
35

Dated:

Bohemia, New York July 28, 2016

ZABELL & ASSOCIATES, P.C. Counsel for Appellees

By·.

~ __,,_,,,,,,._,.,.,_,

Dlgitally signed by Saul D. Zabell Date: 2017.07.28 09:16:33 -04'00'

Saul D. Zabell

One Corporate Drive, Suite 103

Bohemia, NY 11716

(631) 589-7242

(631) 563-7475

szabell@laboriawsny.com

36

CERTIFICATE OF COMPLAINCE PURSUANT TO FRAP 32(a)
Pursuant to Rule 32(a)(7)(B) of the Rules of Appellate Procedure (Second Circuit), the attached brief contains 7,139 words.
Digitally signed by Saul D.Zabell Date: 2017.07.28 09:16:54 -04'00'
Saul D. Zabell (SZ 2738) Dated: July 28, 2017

 
 15-3775
dIN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT
MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants, —against—
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, RAY MAYNARD, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, HON. JOSEPH BIANCO, JUDGE
BRIEF OF THE LEGAL AID SOCIETY AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS
RICHARD BLUM HEIDI CAIN THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 (212) 577-3300 Attorneys for Amicus Curiae
The Legal Aid Society

TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT ........................................................ix
STATEMENT OF INTEREST..................................................................................1
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................4
I. Under Title VII, Discrimination Based On Sexual Orientation Cannot Be Carved Out From Discrimination Based On Failing To Conform To Gender Stereotypes. ....................................................4
A. Courts And Other Arbiters Increasingly Recognize That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping, And Is Therefore Protected By Title VII. ............6
B. Second Circuit Precedent Has Created An Untenable Framework For Evaluating Claims Of Employment Discrimination Based On Sexual Orientation Distinct From Gender Stereotyping........................................................10
C. Childhood Bullying And Other Real World Evidence Demonstrate That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping. ...............................................15
II. Interpreting Title VII To Protect Against Sexual Orientation Discrimination Would Further Title VII’s Legislative Purpose And Combat The Economic And Other Harms Suffered By LGB People. ........................................................................................22
A. Title VII Was Intended To Protect Certain Groups From The Harmful Economic Effects That Flow From Employment Discrimination.....................................................22
B. Sexual Orientation Discrimination Negatively Affects LGB Employment Opportunities And Overall Well Being. ........................................................................................24
i

C. Sexual Orientation Discrimination Exacerbates Poverty. ........29 CONCLUSION ........................................................................................................31 CERTIFICATE OF COMPLIANCE.......................................................................34
ii

TABLE OF AUTHORITIES
Page(s)
Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)............................................................................................23
Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) .....................................................................................................................9
Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016)...............................................................7, 9
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)...............................................................7, 9
Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ........................................................................passim
Couch v. Chu, E.E.O.C. Appeal No. 0120131136, 2013 WL 4499198 (Aug. 13, 2013) ...................................................................................................................11
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................3, 5, 12, 13
Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997) ..............................................................................11
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) ....................................................................13, 14
Griggs v. Duke Power Co., 401 U.S. 424 (1971)............................................................................................23
Henderson v. Labor Finders of Va., Inc., No. 3:12-cv-600, 2013 WL 1352158 (E.D. Va. Apr. 2, 2013)...........................11
iii

Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) ..........................................................................8, 12
Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015).....................................................9
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) ..............................................................................11
Philpott v. New York, No. 16-cv-6778 (AKH), 2017 WL 1750398 (S.D.N.Y. May 3, 2017) ...................................................................................................................10
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)....................................................................................5, 6, 13
Romer v. Evans, 517 U.S. 620 (1996)............................................................................................29
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) .........................................................................3, 5, 11
U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016)...................................................................9
Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984) ..............................................................................8
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015) ..............................................................10
Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334 (N.D. Fla. 2016) ................................................................9
Statutes 42 U.S.C. § 2000e-2(a)(1)..........................................................................................4
42 U.S.C. § 2000e et seq. (July 2, 1964) .................................................................23
iv

Rules and Regulations 29 C.F.R. § 1608.1 ...................................................................................................24
FED. R. APP. P. 26.1................................................................................................ viii
FED. R. APP. P. 29(a)(4)(E) ........................................................................................1
FED. R. APP. P. 29(a)(5) ...........................................................................................34
FED. R. APP. P. 29(a)(8) .............................................................................................2
FED. R. APP. P. 29(b)(2) .............................................................................................2
FED. R. APP. P. 29(c)(1) ......................................................................................... viii
FED. R. APP. P. 32(a)(5) ...........................................................................................34
FED. R. APP. P. 32(a)(6) ...........................................................................................34
FED. R. APP. P. 32(a)(7)(B) ......................................................................................34
Other Authorities Andras Tilcsik, Pride and Prejudice: Employment Discrimination
Against Openly Gay Men in the United States, 117 Am. J. of Soc. 586 (2011).....................................................................................................24, 25
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994) ...............................15
Angela Irvine, “We’ve Had Three of Them”: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System, 19 Colum. J. of Gender & L. 675 (2010)...........................................................................................................18
Anthony E. Varona et al., En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67 (2000).........................20
Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715 (2014).....................................................................13
v

Christy Mallory et al., The Economic Impact of Stigma and Discrimination Against LGBT People in Georgia, The Williams Institute (2017), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Economic-Impact-of-Discrimination-and-Stigmaagainst-LGBT-People-in-Georgia-FINAL-4.pdf (last visited June 25, 2017) .............................................................................................................31
Deena Fidas et al., The Cost of the Closet and the Rewards of Inclusion, Human Rights Campaign (May 2014), available at https://tinyurl.com/yb8wnsk5 (last visited June 25, 2017)...........................27, 28
Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. Rev. 471 (2001) ....................................15
Elizabethe Payne et al., LGBTQ Kids, School Safety, and Missing the Big Picture: How the Dominant Bullying Discourse Prevents School Professionals from Thinking about Systemic Marginalization or . . . Why We Need to Rethink LGBTQ Bullying, 1 QED: A J. in GLBTQ Worldmaking 1 (2013) ....................................17, 18, 20
Emir Ozeren, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 109 Procedia Soc. & Behav. Sci. 1203 (2014).........................................................................................................31
Growing Up LGBT in America, Human Rights Campaign, at 16, available at http://www.hrc.org/youth-report (last visited June 23, 2017) ...................................................................................................................18
H.R. Rep No. 88-914, pt. 1 (1963) ...........................................................................23
H.R. Rep No. 88-914, pt. 2 (1963) ...........................................................................23
HRC Staff, Coming of Age: Creators of Golden Globe Winner “Moonlight” Discuss Bullying, Masculinity, Human Rights Campaign (Jan. 9, 2017), available at https://tinyurl.com/y7dmvc46 (last visited June 25, 2017) ................................20
Jamie H. Douglas et al., The Sexual Orientation Wage Gap for Racial Minorities, 54 Indus. Relations 59 (2015) ..........................................................26
vi

Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, Bloomberg (July 20, 2016), available at https://tinyurl.com/jzdaptl (last visited June 25, 2017) ......................................29
Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1 (1995)...............................................................................................................15
Ken Corbett, Faggot=Loser, 2 Studies in Gender and Sexuality 3 (2001) ..................................................................................................................21
M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute (June 2013), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGB-Poverty-Update-Jun-2013.pdf (last visited June 25, 2017).....................................................................................................30
Major Velma Cheri Gay, 50 Years Later … Still Interpreting the Meaning of “Because of Sex” Within Title VII and Whether It Prohibits Sexual Orientation Discrimination, 73 A. F. L. Rev. 61 (2015) ..................................................................................................................21
Melissa J. Smith et al., Binaries and Biology: Conversations with Elementary Education Professionals After Professional Development on Supporting Transgender Students, 80 The Educ. F. 34 (2016).........................................................................................................16
Melissa J. Smith et al., Educator Evaluations of School Climate for LGBTQ Students: A Reiteration of the Bullying Discourse in 5 LGBTQ Voices in Education: Change the Culture of Schooling 73 (2015) ..................................................................................................................19
Michael King et al., A Systemic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People, 8 BMC Psychiatry 70 (Aug. 18, 2008), available at https://tinyurl.com/y82ylc8b (last visited June 25, 2017) ..................................27
Michael S. Kimmel, Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity, 33 Readings For Diversity and Social Justice (2001) ....................................................................21
vii

Nancy Levit, Theorizing and Litigating the Rights of Sexual Minorities, 19 Colum. J. Gender & L. 21 (2010) ...............................................12
Rob Smith, Opinion: The Bearable Whiteness of Being Gay, InAmerica CNN Blogs (Feb. 2, 2012), available at https://tinyurl.com/6nyus6k (last visited June 25, 2017)....................................30
Sejal Singh et al., Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways, Center for American Progress (May 2, 2017), available at https://tinyurl.com/ybxbzttt (last visited June 25, 2017). .................25, 26, 28, 29
Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988) ............................................................................15
Taylor N.T. Brown et al., Food Insecurity and SNAP Participation in the LGBT Community, The Williams Institute (July 2016), available at http://williamsinstitute.law.ucla.edu/research/healthand-hiv-aids/lgbt-people-are-disproportionately-food-insecure/ (last visited June 25, 2017) .................................................................................30
Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465 (2004)................................................20
viii

CORPORATE DISCLOSURE STATEMENT Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate Procedure, amicus curiae The Legal Aid Society states that it has no parent corporation and that no publicly held company owns 10% or more of its stock.
ix

STATEMENT OF INTEREST1 The Legal Aid Society (“Legal Aid”) is the nation’s oldest and largest private not-for-profit organization, providing free legal services to low-income individuals and families for over 140 years. Its more than 1,100 attorneys represent clients throughout New York City in over 300,000 matters annually. Accordingly, Legal Aid is uniquely positioned to provide guidance to the Court on economic issues affecting the marginalized. Additionally, in 2011, Legal Aid started its LGBT Law and Policy Initiative to combat poverty and homelessness among lesbian, gay, bisexual (“LGB”), and transgender people. Through that initiative, along with its Juvenile Rights Practice, which, inter alia, represents children in the majority of New York City abuse and neglect proceedings, as well as its Civil/Employment Law Unit, Legal Aid assists and represents individuals who have experienced discrimination based on their sexual orientation. Across its legal practices, Legal Aid has represented members of the LGB (or “gay”) community in thousands of cases and has served as counsel, or appeared as amicus, in cases pertaining to gender and sexuality.
1 No party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money intended to fund preparing or submitting this brief; and no person other than amicus curiae, its members, or its counsel, contributed money intended to fund preparing or submitting this brief. See FED. R. APP. P. 29(a)(4)(E).
1

Legal Aid has seen first-hand the impact that sexual orientation discrimination has on low-income workers, including gay people.
Amicus thus brings critical perspective and decades of experience to bear on the question whether Title VII provides protection to individuals who experience sexual orientation discrimination. Should the Court believe it would benefit from oral argument by amicus, Legal Aid would be happy to oblige.2 This Court granted leave for filing amici curiae briefs in its May 25, 2017 order3; additionally, Appellants have consented to the filing of this brief, and Appellees have stated that they will not submit any opposition.4
2 See FED. R. APP. P. 29(a)(8). 3 Order, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. May 25, 2017), ECF No. 271. 4 See FED. R. APP. P. 29(b)(2).
2

SUMMARY OF ARGUMENT This Court should overrule Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), and hold that discrimination in the workplace on the basis of sexual orientation is illegal under Title VII of the Civil Rights Act of 1964. 1. It is well established, by the Supreme Court and this Court, that gender stereotyping discrimination is a form of discrimination on the basis of sex, and thus within Title VII’s ambit. However, current precedent, articulated in Simonton and Dawson, carves out sexual orientation discrimination from the meaning of gender stereotyping, resulting in protection of LGB individuals if they are gender nonconforming (e.g., effeminate gay men), but not if they are gender conforming (e.g., masculine gay men). This distinction is simply untenable. An increasing number of judges, as well as the Equal Employment Opportunity Commission (“EEOC”), now interpret Title VII as protecting all, rather than some, LGB individuals. This interpretation is based on the recognition that sexual orientation discrimination is a form of gender stereotyping, which is already prohibited. Moreover, as set forth below, social science and legal scholarship demonstrate that homophobia is invariably rooted in and driven by gender stereotyping and gender policing that begins in childhood.
3

2. Title VII was intended to protect marginalized groups from economic injuries caused by employment discrimination. This brief presents research demonstrating that LGB individuals are discriminated against because of their sexual orientation, and that such individuals therefore suffer lower rates of employment, lower wages, and higher rates of poverty compared to the public at large. Put simply, sexual orientation discrimination has caused widespread and profound economic harm. Therefore, interpreting Title VII to protect against sexual orientation discrimination furthers Title VII’s very purpose.
The Court now has a historic opportunity to overrule bad precedent and hold that Title VII protects all, not some, LGB individuals who are discriminated against in the workplace based on their sexual orientation.
ARGUMENT I. UNDER TITLE VII, DISCRIMINATION BASED ON SEXUAL ORIENTATION
CANNOT BE CARVED OUT FROM DISCRIMINATION BASED ON FAILING TO CONFORM TO GENDER STEREOTYPES. As set forth in Title VII, it is an “unlawful employment practice for an employer . . . to discharge or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.”5 This Court’s jurisprudence has employed a
5 42 U.S.C. § 2000e-2(a)(1).
4

strained reading of “sex” such that gender stereotyping is prohibited,6 but sexual orientation discrimination is not.7 Consequently, within the Second Circuit, all straight people—and some gay people—who appear to transgress superficial gender norms, are protected under Title VII, while other gay people are not. As the Supreme Court observed in Price Waterhouse, however, courts “need not leave [their] common sense at the doorstep when” interpreting Title VII.8 And common sense dictates that sexual orientation discrimination is rooted in the very gender stereotyping that Title VII prohibits.
There is no principled basis for distinguishing between discrimination based on sexual orientation and discrimination based on failure to conform to gender stereotypes, given that both rely on traditional notions of acceptable behavior for men and women. Increasingly, courts confronting the issue have recognized that this is the case. By contrast, this Court’s jurisprudence in Simonton and Dawson demonstrates that attempts to isolate sexual orientation from other forms of gender stereotyping simply defy logic. Further, sociological data support the notion that sexual orientation discrimination is a form of gender stereotyping discrimination.
6 See Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 199-200 (2d Cir. 2017) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 231-33 (1989)). 7 See Dawson, 398 F.3d at 217-22; Simonton, 232 F.3d at 35. 8 490 U.S. at 241.
5

Accordingly, the time has come to remedy the strained reading of “sex” in Title VII by recognizing that Title VII-cognizable sex discrimination based on gender stereotyping includes discrimination based on sexual orientation.
A. Courts And Other Arbiters Increasingly Recognize That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping, And Is Therefore Protected By Title VII.
Federal judges and adjudicators at the administrative, district court, and appellate levels have increasingly concluded that employers that consider an employee’s sexual orientation in making selection, evaluation, or compensation decisions unlawfully “rel[y] upon sex-based considerations in coming to [their] decision[s].”9
In his concurrence in Christiansen, Chief Judge Katzmann, joined by Judge Brodie, identified at least three reasons why discrimination on the basis of an individual’s sexual orientation is part and parcel of the kind of sex-based discrimination that violates Title VII, including that “gay, lesbian, and bisexual individuals are treated less favorably because they do not conform to gender stereotypes, particularly stereotypes about the proper roles of men and women in romantic relationships.”10
9 Price Waterhouse, 490 U.S. at 242. 10 852 F.3d at 202 (Katzmann, C.J., concurring).
6

While Legal Aid believes each of Chief Judge Katzmann’s rationales justifies the conclusion that sexual orientation is sex-based discrimination, this brief focuses on the above-quoted rationale, particularly because the work of legal theorists and practitioners on LGB issues, including Legal Aid, reinforces the point.11 That is, discriminators do not differentiate between notions of how a “man” should act and how a “straight” man should act. Instead, sexual orientation discrimination “is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”12
As observed in the Christiansen per curiam, “gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals.”13 Accordingly, to the extent that, as the concurrence acknowledged, “homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus,”14
11 See Section I.C, infra. 12 Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring) (quoting Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002)). 13 Id. at 200-01. 14 Id. at 205 (Katzmann, C.J., concurring) (quoting Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016)).
7

it is clear there is no defensible distinction between sexual orientation discrimination and other discrimination based on gender stereotyping.
When recently confronted with the question now before this Court, the Seventh Court overturned three decades of contrary authority and held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”15 As in the Christiansen concurrence, one of the Seventh Circuit’s reasons for so holding was that there is no difference between sexual orientation discrimination and other gender stereotyping.16 The Court recognized that the plaintiff-appellant, “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”17 Accordingly, while a panel of the Seventh Circuit characterized “the line between a gender nonconformity claim and one based on sexual orientation as gossamer thin,” the Court, sitting en banc, concluded “that it does not exist at all.”18
15 Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017) (en banc). The earliest case that Hively abrogated, Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984), informed this Court’s outmoded decision in Simonton. 16 Hively, 853 F.3d at 346. 17 Id. 18 Id.
8

Furthermore, the EEOC also ruled that sexual orientation discrimination is protected under Title VII.19 Like the subsequent Hively decision and Christiansen concurrence, it agreed that “[s]exual orientation discrimination also is sex discrimination because it necessarily involves discrimination based on gender stereotypes.”20 It noted that such “discrimination and harassment ‘[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms.’”21
Finally, a number of district courts, faced with interpreting “sex” under Title VII, have come out the same way as the Christiansen concurrence, the Seventh Circuit, and the EEOC and agreed that sexual orientation discrimination cannot be distinguished from gender stereotyping.22
As one judge in the Southern District of New York explained, whether a “plaintiff has framed his complaint in terms of sexual orientation discrimination
19 Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 15, 2015). 20 Id. at *7. 21 Id. at *8 (quoting Centola, 183 F. Supp. 2d at 410). 22 See, e.g., Boutillier, 221 F. Supp. 3d at 270; U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834, 841-42 (W.D. Pa. 2016); Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334, 1346-47 (N.D. Fla. 2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1194 (M.D. Ala. 2015); Centola, 183 F. Supp. 2d at 410.
9

and not gender stereotyping discrimination is immaterial” given the “‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”23
B. Second Circuit Precedent Has Created An Untenable Framework For Evaluating Claims Of Employment Discrimination Based On Sexual Orientation Distinct From Gender Stereotyping.
Currently, Second Circuit precedent dictates that individuals who face workplace discrimination for failing to conform to certain gender-based stereotypes are protected under Title VII, whereas those who face workplace discrimination because they are gay are not. This artificial distinction leads to baffling results, as is evident from the Simonton and Dawson decisions, in which the Second Circuit categorized the alleged evidence of discrimination as either relating to sexual orientation or gender stereotyping, when sexual orientation discrimination is gender stereotyping.
In Simonton, a panel of the Second Circuit voiced disgust at evidence that Simonton’s co-workers harassed him for being gay by, among other things, calling him a “faggot” and hanging posters stating that he “suffered from mental illness as
23 Philpott v. New York, No. 16-cv-6778 (AKH), 2017 WL 1750398, at *2 (S.D.N.Y. May 3, 2017); cf. Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (applying Title VII principles in interpreting Title IX, and holding that the distinction between sexual orientation discrimination and gender stereotyping discrimination “is illusory and artificial”).
10

a result of ‘bung hole disorder.’”24 Yet because the Court categorized such
pejoratives as relating to sexual orientation only, the Court ruled that there was
insufficient evidence of “discrimination based upon sexual stereotypes.”25 In
doing so, the Court ignored what other courts have since recognized—that the
homophobic slurs in Simonton, are, at bottom, gendered forms of harassment.26
Indeed, Simonton’s harassers would not have believed he was “disorder[ed]” and
“suffered from mental illness”27 if not for gender-based stereotypes about a man’s
24 232 F.3d at 35. 25 Id. at 38. 26 See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870, 874-75 (9th Cir. 2001) (abusive words like “faggot” fell within Title VII “sex” protections as “closely linked to gender”); Doe by Doe v. City of Belleville, 119 F.3d 563, 593 n.27 (7th Cir. 1997) (“a homophobic epithet like ‘fag,’ for example, may be as much a disparagement of a man’s perceived effeminate qualities as it is of his perceived sexual orientation.”); Henderson v. Labor Finders of Va., Inc., No. 3:12cv-600, 2013 WL 1352158, at *1, *2, *5 (E.D. Va. Apr. 2, 2013) (“[A]s a result of the well-documented relationship between perceptions of sexual orientation and gender norms, gender-loaded language [like “faggot”] can easily be used to refer to perceived sexual orientation and vice versa”); Couch v. Chu, E.E.O.C. Appeal No. 0120131136, 2013 WL 4499198, at *8 (Aug. 13, 2013) (“the words ‘fag’ and ‘faggot’ are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.”). 27 Simonton, 232 F.3d at 35.
11

role in sexual relations.28 When the Court reaffirmed Simonton in Dawson, it once again attempted
analytical “calisthenics.”29 Indeed, it struggled to categorize the hairdresser plaintiff’s “conflated” claims arising from her intersectional identity as a woman in a male-dominated industry, a woman who appeared masculine in contravention of femininity norms, and a lesbian in a heterosexual-dominated society.30 As the Court observed, “[w]hen utilized by an avowedly homosexual plaintiff, . . . gender stereotyping claims can easily present problems for an adjudicator [because] . . . [s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”31 Instead of acknowledging that this “blur” represents the impossibility of separating sexual orientation discrimination and gender stereotyping discrimination, the Court labored to fit the facts within those categories, under Simonton’s flawed paradigm. It, thus, tried to parse whether the plaintiff’s colleagues called her “Donald”
28 See Nancy Levit, Theorizing and Litigating the Rights of Sexual Minorities, 19 Colum. J. Gender & L. 21, 49-50 (2010) (“For gay men and lesbians, sexual orientation was originally medicalized as a mental disorder . . . . It was not until 1986 . . . that this category was finally removed from the DSM-IIIR.”). 29 See Hively, 853 F.3d at 350 (“It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”). 30 Dawson, 398 F.3d at 217. 31 Id. at 218 (quotations omitted).
12

because of “her masculine appearance” or because of “her sexual orientation,” as though discriminators so differentiate.32 But such analyses contravene Price Waterhouse, which held that employers may not rely on any stereotypes about how a woman should behave, whether it be maintaining a sufficiently feminine appearance or dating men instead of women.33
As Simonton and Dawson demonstrate, artificial distinctions between sexual orientation discrimination and other examples of discrimination based on gender stereotyping prove feeble analytical tools for resolving employment discrimination claims. Current precedent creates an irrational distinction between LGB individuals who do not conform to gender stereotypes (and are protected) and those who do conform to gender stereotypes (and are not). “Plaintiffs who ‘look gay’ succeed under Title VII while those merely known or thought to be gay do not.”34
Current precedent also sends a disturbing message to LGB people in the workforce. Judge Rosenbaum’s dissent in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), aptly noted the problem of construing Title VII to
32 Id. at 222. 33 See 490 U.S. at 251. 34 Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 766 (2014).
13

prohibit gender stereotyping but not sexual orientation discrimination. As
explained therein, such a construction:
protects women who act or dress in ways that the employer perceives as gay, because that behavior fails to conform to the employer’s view of how a woman should act. But it allows employers to freely fire women that the employer perceives to be lesbians—as long as the employer is smart enough to say only that it fired the employee because it thought that the employee was a lesbian, without identifying the basis for the employer’s conclusion that she was a lesbian. It cannot possibly be the case that a lesbian who is private about her sexuality—or even a heterosexual woman who is mistakenly perceived by her employer to be a lesbian—can be discriminated against by the employer because she does not comport with the employer’s view of what a woman should be, while the outwardly lesbian plaintiff enjoys Title VII protection.35 Such a framework cannot stand. This Court can now account for “the changing
legal landscape that has taken shape in the nearly two decades since Simonton
issued” and formally recognize that gender stereotyping discrimination
encompasses sexual orientation discrimination.36 It should recognize that “if gay,
lesbian, or bisexual plaintiffs can show that they were discriminated against for
failing to comply with some gender stereotype, including the stereotype that men
should be exclusively attracted to women and women should be exclusively
35 See 850 F.3d at 1267 (Rosenbaum, J., dissenting). 36 Christiansen, 852 F.3d at 202 (Katzmann, C.J., concurring).
14

attracted to men, they have made out a cognizable sex discrimination claim.”37
C. Childhood Bullying And Other Real World Evidence Demonstrate That Sexual Orientation Discrimination Is Rooted In Gender Stereotyping.
It is clear to Legal Aid from its extensive experience in this area, as well as
from the work of legal theorists, social scientists, and other practitioners familiar
with LGB issues, that sexual orientation discrimination is one form that gender
stereotyping takes. But despite significant scholarship in this area,38 the
jurisprudence did not immediately follow. By examining how homophobia
operates in children and young adults, however, the extent to which sexual
37 Id. at 206 (emphasis added). 38 See, e.g., Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. Rev. 471, 498 (2001) (“The sociological claim is that laws that discriminate on the basis of sexual orientation disadvantage women as well as lesbians, gay men, and bisexuals because these laws perpetuate a social system in which women play different social roles than men. The theoretical claim is that these laws are justified by sexism.”); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 98 (1995) (“[E]very sexual biological fact is meaningful only within a gendered frame of reference”); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 219 (1994) (“Laws that discriminate against gays rest upon a normative stereotype: the bald conviction that certain behavior—for example, sex with women—is appropriate for members of one sex, but not for members of the other sex.”); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 187 (1988) (“[C]ontemporary legal and cultural contempt for lesbian women and gay men serves primarily to preserve and reinforce the social meaning attached to gender”).
15

orientation discrimination is rooted in gender stereotyping becomes more obvious. For one thing, homophobic bullying begins in early childhood, long before
puberty or the emergence of sexuality. Even before children may recognize their own sexual orientation, their peers use homophobic slurs to police behavior according to gender norms. As social science research confirms, in the elementary school years, “children learn and invest in the rules of normative masculine and feminine performance” and then “learn to use these social norms to police one another and battle for social position.”39 That is, “elementary schools are, in fact, significant social contexts for the gender socialization of children.”40 Children learn “how to be a ‘boy’ or ‘girl’” and, what’s more, they “learn to interpret and enforce social rules for ‘correct’ gender expression” as “shaped by . . . heterosexual relationships and desire.”41 Because bullied children are too young to engage in same-sex sexual relationships, “[b]oys’ regular misogynistic teasing and sexual harassment of girls, girls’ verbal policing of one another’s appearance and sexual reputations, and boys’ frequent homophobic teasing are examples of verbal aggression that . . . police the boundaries of acceptable gender,” not sexual
39 Melissa J. Smith et al., Binaries and Biology: Conversations with Elementary Education Professionals After Professional Development on Supporting Transgender Students, 80 The Educ. F. 34, 37 (2016). 40 Id. (citations omitted). 41 Id.
16

orientation.42 Such school-aged bullying is “deeply entrenched in the perpetuation of
cultural norms and values—significantly, those norms that require a fixed relationship between (hetero) gender, sex and sexuality and the maintaining of ‘gender coherence’ through this ‘constellation.’”43 “Those who most successfully conform to gender expectations are ‘celebrated’ in their peer groups and in school culture,” whereas “[y]oung people who are viewed as having an inadequate gender performance or gender characteristics or a gender identity not normatively associated with their biological sex are more violently and publically ‘marked,’ and denied access to social power and popularity.”44
Gender-stereotyped bullying continues into adolescence as sexuality emerges and young adults develop a sexual orientation. According to a 2012 survey of more than 10,000 Lesbian, Gay, Bisexual and Transgender (“LGBT”)identified youth ages 13-17, LGBT youth are more than two times as likely as nonLGBT youth to say they have been verbally harassed and called names, and
42 Elizabethe Payne et al., LGBTQ Kids, School Safety, and Missing the Big Picture: How the Dominant Bullying Discourse Prevents School Professionals from Thinking about Systemic Marginalization or . . . Why We Need to Rethink LGBTQ Bullying, 1 QED: A J. in GLBTQ Worldmaking 1, 21 (2013). 43 Id. 44 Id. at 22.
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physically assaulted, kicked, or shoved at school.45 Sadly, 92% of LGBT youth “say they hear negative messages about being LGBT.”46 Twenty-one percent of LGBT youth identified school bullying as the most important problem they face (with 26% most worried about non-accepting families), while their peers worry about grades and college.47 But such bullies may not even know the sexual orientation of their victims. Rather, “many youths do not disclose their sexual orientations or gender identities” as a result of “high levels of homophobic reprisal” including from peers, parents, and other authority figures.48
Perhaps it is not surprising then that, “a majority of peer-to-peer aggression in U.S. public schools is some form of gender policing,”49 and student victims of LGBT harassment “are often targeted for ‘failing to conform to stereotypical
45 Growing Up LGBT in America, Human Rights Campaign, at 16, available at http://www.hrc.org/youth-report (last visited June 23, 2017). This is the largest known sample of LGBT youth, and drew responses from every region of the country and many social, cultural, ethnic, and racial backgrounds. 46 Id. at 18. 47 Id. at 2. 48 Angela Irvine, “We’ve Had Three of Them”: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System, 19 Colum. J. of Gender & L. 675, 677 (2010). 49 Payne, supra note 42 at 25-26 (emphasis in original).
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notions of masculinity and femininity.’”50 Specifically, “overt acts of violence against LGBTQ youth (or those who are perceived to be) are . . . explicit effects of heteronormative school cultures that . . . privilege idealized (hetero) gender performances and create social benefits for peer-to-peer policing of non-normative sexualities and genders.”51
Even those of us who are many years removed from school may be familiar with the poignant depiction of this very concept from the 2017 Academy Awards’ Best Picture, “Moonlight.” In the film, a coming-of-age story of a young, gay man, the protagonist faces intense homophobic bullying and questions about his sexuality, at an age even before he identifies as gay, because he is perceived as “soft.” In an interview about the film’s themes, playwright Tarell Alvin McCraney, whose play the film is based upon, explained: “if we look at all real homophobia, it’s anti-feminism. It’s really misogyny dressed up, or pointed at men. What is the term in which we denigrate men for being homosexual? It is that
50 Melissa J. Smith et al., Educator Evaluations of School Climate for LGBTQ Students: A Reiteration of the Bullying Discourse in 5 LGBTQ Voices in Education: Change the Culture of Schooling 73, 73 (2015). 51 Id. at 74 (citation omitted).
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they’re a ‘girl’ or they’re weaker.”52 Accordingly, “patterns of targeting indicate
that youths’ understanding (and marking) of their LGBTQ and gender
nonconforming peers is not ‘based solely on sexual orientation, but rather from
judgments about perceived tendencies to engage in forms of expression that run
counter to gender conventions.’”53 It is, thus, the case that, “acts of LGBTQ
harassment are ‘reiterations of the dominant order’ that normalize the
marginalization of students who do not conform or meet the standards of
hegemonic gender in some way.”54
Childhood bullying dynamics demonstrate that sexual orientation
discrimination relies on gender stereotype discrimination that extends into
adulthood.55 “Gender norms start at an early age. The result is gay men and
52 HRC Staff, Coming of Age: Creators of Golden Globe Winner “Moonlight” Discuss Bullying, Masculinity, Human Rights Campaign (Jan. 9, 2017), available at https://tinyurl.com/y7dmvc46 (last visited June 25, 2017). 53 Payne, supra note 42 at 22 (quotation omitted). 54 Id. at 25 (quotation omitted). 55 See Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing GenderConforming and Gender-Nonconforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465, 486-97 (2004) (discussing the nature of gender stereotypes in gay people); Anthony E. Varona et al., En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 72-73 (2000) (“[G]ay people, simply by identifying themselves as gay, are violating the ultimate gender stereotype—heterosexual attraction.”).
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women are often discriminated against because of rejection of the traditional male and female roles.”56 As students move from the schoolyard to the workplace, employment discrimination takes the place of such bullying.57
In sum, gender stereotyping is deeply embedded in homophobic bullying from an early age, even before sexuality is in play. Later on, gender stereotyping remains at the core of homophobic workplace discrimination. No matter how gender conforming a gay employee may otherwise be, gender stereotyping is bound up inextricably with the homophobic discrimination he or she may face. Because sexual orientation discrimination inherently involves gender stereotyping, which is already prohibited under Title VII as discrimination “because of . . . sex,” it follows that this Court should also recognize that sexual orientation discrimination is prohibited under Title VII.
56 Major Velma Cheri Gay, 50 Years Later … Still Interpreting the Meaning of “Because of Sex” Within Title VII and Whether It Prohibits Sexual Orientation Discrimination, 73 A. F. L. Rev. 61, 98 (2015). 57 See Ken Corbett, Faggot=Loser, 2 Studies in Gender and Sexuality 3, 3-28 (2001) (discussing how homophobic harassment is equally rooted in definitions of masculinity as gay fear); Michael S. Kimmel, Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity, 33 Readings For Diversity and Social Justice, 213-19 (2001) (same). See Section II.B, infra for a discussion of sexual orientation discrimination in the workplace.
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II. INTERPRETING TITLE VII TO PROTECT AGAINST SEXUAL ORIENTATION DISCRIMINATION WOULD FURTHER TITLE VII’S LEGISLATIVE PURPOSE AND COMBAT THE ECONOMIC AND OTHER HARMS SUFFERED BY LGB PEOPLE. Interpreting Title VII to prohibit discrimination on the basis of sexual
orientation is also consistent with a goal of Title VII: the mitigation and prevention of the harmful economic effects that flow from employment discrimination. Through its decades of work with the LGB community, Legal Aid is well aware of the harmful effects that flow from workplace discrimination based on sexual orientation, including job insecurity, poverty, homelessness, depression, and suicide. Recognizing that Title VII includes LGB status will help to protect gay people and their families in accord with the statute’s purpose.
A. Title VII Was Intended To Protect Certain Groups From The Harmful Economic Effects That Flow From Employment Discrimination.
One goal for Title VII was to address poverty caused by workplace discrimination. Congress passed the Civil Rights Act of 1964, and Title VII therein, to create a level playing field for all Americans in areas of employment,
22

education, housing, and elsewhere.58
As Title VII’s legislative history shows, Congress recognized the economic
harms caused by employment discrimination, including pervasive and deep-seated
poverty, and it resolved to combat those harms by enacting Title VII.59
Moreover, in interpreting Title VII, the Supreme Court has long emphasized
that Title VII “deals” with the economic harm to certain groups that employment
discrimination causes.60 It explained that Title VII is fundamentally concerned
with the “consequences” of employment discrimination, “not simply the
motivation.”61
58 See generally 42 U.S.C. § 2000e et seq. (July 2, 1964); see also H.R. Rep No. 88-914, pt. 1, at 3 (1963), as reprinted in 1964 U.S.C.C.A.N. 2391, 2393 (General Statement) (declaring the intent of the Civil Rights Act of 1964 to be “general in application and national in scope” so as to “eradicat[e] significant areas of discrimination on a nationwide basis”). 59 See, e.g., H.R. Rep No. 88-914, pt. 2, at 102 (1963), as reprinted in 1964 U.S.C.C.A.N. 2391, 2514-15 (Additional Views of Rep. McCulloch et al.) (“A nation need not and should not be converted into a welfare state to reduce poverty, lessen crime, cut down unemployment, or overcome shortages in skilled occupational categories. All that it needed is the institution of proper training programs and the elimination of discrimination in employment practices.”). 60 See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 420 (1975) (“Title VII deals with legal injuries of an economic character occasioned by racial or other antiminority discrimination.”). 61 Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (emphasis added).
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Furthermore, the EEOC’s Regulations and Guidelines echo the goal of improving economic prosperity by eliminating discrimination, explaining that:
Congress enacted [T]itle VII in order to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place. These conditions were part of a larger pattern of restriction, exclusion, discrimination, segregation, and inferior treatment of minorities and women in many areas of life.62 As explained below, research shows that LGB people experience workplace discrimination, which causes serious economic harm of the sort that Title VII is generally designed to prevent. Moreover, young people in the LGB community experience discrimination that hurts them economically and hinders their ability to reach their full potential as adults. B. Sexual Orientation Discrimination Negatively Affects LGB
Employment Opportunities And Overall Well Being. Legal Aid has long fought the exacerbating influence of sexual orientation discrimination on poverty and homelessness within the LGB community. The pervasive discrimination against this group has negatively impacted the LGB community’s job opportunities in measurable ways. In a 2011 study, a researcher sent 1,769 pairs of fictitious resumes to white-collar employers in seven states.63
62 29 C.F.R. § 1608.1. 63 See Andras Tilcsik, Pride and Prejudice: Employment Discrimination Against Openly Gay Men in the United States, 117 Am. J. of Soc. 586, 601 (2011).
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One resume in each pair listed experience in a gay community organization, while the other resume in the pair did not.64 The study showed that the “applicant” with the gay organization on his resume was 40% less likely to receive a call for an interview.65 The researcher thus concluded that “gay men encounter significant barriers in the hiring process because, at the initial point of contact, employers more readily disqualify openly gay applicants than equally qualified heterosexual applicants.”66
This issue has not improved since 2011. In a 2015 study, the American Psychological Association found that 33% of LGBT adults reported being unfairly not hired for a job, compared to 20% of white men. A 2016 study showed that between 11% and 28% of LGB workers reported losing a promotion because of their sexual orientation.67
Moreover, a negative synergy occurs where LGB people possess other economically and politically disfavored identities. For example, a 2015 study
64 Id. at 597. 65 Id. at 605 (emphasis added). 66 Id. at 614. 67 See Sejal Singh et al., Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways, Center for American Progress (May 2, 2017), available at https://tinyurl.com/ybxbzttt (last visited June 25, 2017).
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showed that gay black workers earn less than the combined wage gaps for race and sexual orientation.68 As the study’s authors explained:
[The wage penalty suffered by gay blacks compared with white married men] is even larger than the sum of the within-race sexual orientation wage penalty (13.8%) and the racial wage penalty for gay black men (6.6%). This indicates the earnings penalties of black gay men are not simply the sum of their distinct minority sexual orientation and race penalties, but rather that there is a magnifying effect of double minority status penalizing black gay workers.69 Moreover, this effect is “most pronounced for lower-income workers,” that is, those already struggling to make ends meet.70
In addition to hindering LGB individuals’ ability to secure employment and
advance in their careers once employed, discrimination directed at this community
has subtle, sometimes invisible effects that are equally damaging. For example,
69% of LGBT adults who experienced sexual orientation- or gender identity-based
discrimination in the past year reported that the discrimination negatively affected
their psychological wellbeing; 44% said it negatively affected their physical wellbeing; and 53% reported it negatively impacted their work environment.71
68 See Jamie H. Douglas et al., The Sexual Orientation Wage Gap for Racial Minorities, 54 Indus. Relations 59, 85-86 (2015). 69 Id. 70 Id. at 96. 71 See Singh, supra note 67.
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Studies have also shown that mood and anxiety disorders have a particularly high incidence in the LGB community. In a meta-analysis of 25 studies on the prevalence of mental disorders in LGB people, researchers found higher incidence of suicidal behavior, mental disorder, and substance abuse in the LGB community than among heterosexuals.72 Although the researchers noted that more research was needed, they theorized that “the social hostility, stigma and discrimination that most LGB people experience is at least part of the reason for the higher rates of psychological morbidity observed.”73
Although social attitudes toward the LGB community have improved in recent years, there is disturbing evidence that discrimination against this community remains strong and has forced some back into the closet. A 2014 Human Rights Campaign Study showed, for example, that 53% of LGBT workers hide their sexual orientation from co-workers.74 A 2016 study concurred; while as many as 32% of LGB individuals who had not experienced discrimination in the
72 See Michael King et al., A Systemic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People, 8 BMC Psychiatry 70 at *13 (Aug. 18, 2008), available at https://tinyurl.com/y82ylc8b (last visited June 25, 2017). 73 Id. at *14. 74 Deena Fidas et al., The Cost of the Closet and the Rewards of Inclusion, Human Rights Campaign, at 9 (May 2014), available at https://tinyurl.com/yb8wnsk5 (last visited June 25, 2017).
27

past year used “vague language when talking about relationships,” that percentage rose to over 70% for those who had experienced discrimination.75 The same study reported that over one-fifth of LGBT workers had searched for a different job because their current work environment was not accepting of their sexual orientation; almost one in ten had left a job for that reason.76
The effects of discrimination do not stop at how LGB individuals describe their professional relationships, but spread to the very way they speak, walk, and dress: 7% of those who had not reported discrimination said they changed the way they talk and walk to avoid discrimination; among those reporting discrimination in the past year, 39% and 27% reported changing their timbre and gait, respectively.77 Fifty-four percent of respondents who had experienced discrimination in the past year were afraid to even speak about LGBT issues in social situations.78 Even those who have not experienced discrimination first-hand typically suffer its effects through common perceptions of the gay community. As such, 24% of LGBT respondents who had not experienced discrimination also
75 Singh, supra note 67. 76 Fidas, supra note 74 at 22-23. 77 Singh, supra note 67. 78 Id.
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avoided speaking about LGBT issues in social situations.79 This data and Legal Aid’s experience reveal that homophobia drives a vicious cycle, increasingly reducing this group’s economic and political power: discrimination forces the LGB community back into the closet, diminishing its visibility and propensity to discuss LGB issues with those outside the community. If and when LGB individuals are discriminated against, even after conforming to most gender stereotypes, they can be, and have been, fired for continuing to violate the most sacred gender stereotype—attraction to the opposite sex.
C. Sexual Orientation Discrimination Exacerbates Poverty. Unfortunately, LGB discrimination worsens poverty in the community, even as many harbor the misconception that the LGB community is one of disproportionate wealth and political power.80 A goal of Legal Aid’s work in this area is to dispel that common myth.
79 Id. 80 See Romer v. Evans, 517 U.S. 620, 636, 645-46 (1996) (Scalia, J., dissenting); Jeff Green, LGBT Purchasing Power Near $1 Trillion Rivals Other Minorities, Bloomberg (July 20, 2016), available at https://tinyurl.com/jzdaptl (last visited June 25, 2017).
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Indeed, the myth is far from true.81 As reported in 2013:
[A] quarter of bisexual women [were] poor (29.4%) and more than 1 in 5 lesbians [were] in poverty (22.7%), a rate higher than the poverty rate among heterosexual women (21.1%) . . . . Similarly, a greater percentage of gay (20.5%) and bisexual men (25.9%) fell at or below the federal poverty line than heterosexual men (15.3%).82
Poverty in the LGB community has many effects, but a more pronounced
one is pervasive food insecurity. A 2016 report found that “LGB adults are 1.36
times more likely than non-LGB adults of the same age to have participated in
SNAP [(Supplemental Nutrition Assistance Program)] in the past year,” and for
same-sex couples, the number jumps to 1.58 times more likely.83
LGB youth are also disproportionately indigent and discriminated against.
As the Williams Institute notes, and as Legal Aid’s experience confirms,
81 See, e.g., Rob Smith, Opinion: The Bearable Whiteness of Being Gay, InAmerica CNN Blogs (Feb. 2, 2012), available at https://tinyurl.com/6nyus6k (last visited June 25, 2017) (noting overrepresentation of affluent, white males in media depictions of LGB community). 82 M.V. Lee Badgett et al., New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute, at 9 (June 2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGB-Poverty-UpdateJun-2013.pdf (last visited June 25, 2017). Although these differences were not statistically significant, the authors believed that their data’s consistency with other data increased the likelihood that the data “represent[ed] meaningful patterns of greater vulnerability to poverty in the LGB community.” Id. 83 Taylor N.T. Brown et al., Food Insecurity and SNAP Participation in the LGBT Community, The Williams Institute, at 3 (July 2016), available at http://williamsinstitute.law.ucla.edu/research/health-and-hiv-aids/lgbt-people-aredisproportionately-food-insecure/ (last visited June 25, 2017).
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“[c]hallenging environments at home and at school contribute to an overrepresentation of LGBT youth in the child welfare system, the youth homeless population, and the juvenile justice system,”84 which negatively affects LGB youths’ employment opportunities as adults and prevents many from escaping the poverty cycle.
Title VII’s protections have the potential to help remedy the impact of these wrongs once a young LGB person starts applying for jobs.85
CONCLUSION For the reasons articulated above, Legal Aid respectfully requests that this en banc Court overrule both Simonton and Dawson, which created an artificial and untenable distinction between discrimination based on sexual orientation and discrimination based on failure to conform to gender stereotypes. The stereotype
84 Christy Mallory et al., The Economic Impact of Stigma and Discrimination Against LGBT People in Georgia, The Williams Institute, at 52 (2017) available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Economic-Impact-ofDiscrimination-and-Stigma-against-LGBT-People-in-Georgia-FINAL-4.pdf (last visited June 25, 2017). 85 Emir Ozeren, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 109 Procedia Soc. & Behav. Sci. 1203, 1212 (2014) (“The introduction of non-discrimination laws can be related to changes in specific workplace [behaviors,] . . . as well as to increases in overall tolerance and acceptance in the workplace”).
31

that a person should exclusively be attracted to members of the opposite sex is a gender stereotype. Legal theory and social science bear that out.
Moreover, employment discrimination against individuals on the basis of sexual orientation inflicts widespread harm. Contrary to the myth of a wealthy community with outsized political influence, many LGB individuals exist on society’s fringes. But this need not continue. Recognizing that Title VII also protects the LGB community will go far towards remediating such wrongs.
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Dated: August 3, 2017

Respectfully submitted,
/s/ Richard Blum Richard Blum, of Counsel Heidi Cain, of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Tel.: +1 212 577 3648 Fax.: +1 646 616 4648 rblum@legal-aid.org hlcain@legal-aid.org
Attorneys for Amicus Curiae, The Legal Aid Society

33

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B), and this Court’s June 19, 2017 order, ECF No. 289, because it contains 6,802 words, excluding exempted parts, as determined by the word-counting feature of Microsoft Word. This brief complies with the typeface and type style requirements of Federal Rules of Appellate Procedure 32(a)(5) and (a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font.
/s/ Richard Blum Richard Blum, of Counsel Heidi Cain, of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Tel.: +1 212 577 3648 Fax.: +1 646 616 4648 rblum@legal-aid.org hlcain@legal-aid.org Attorneys for Amicus Curiae, The Legal Aid Society
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CERTIFICATE OF SERVICE
The undersigned certifies that true and correct copies of this Brief of The
Legal Aid Society as Amicus Curiae in Support of Plaintiffs-Appellants were
served electronically on all counsel of record, who have consented to electronic
service, on August 3, 2017.
/s/ Richard Blum Richard Blum, of Counsel Heidi Cain, of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Tel.: +1 212 577 3648 Fax.: +1 646 616 4648 rblum@legal-aid.org hlcain@legal-aid.org
Attorneys for Amicus Curiae, The Legal Aid Society

 
 15-3775

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR. AS CO- INDEPENDENT EXECUTORS OF THE ESTATE OF
DONALD ZARDA,
Plaintiff-Appellant,
— against —
ALTITUDE EXPRESS dba SKYDIVE LONG ISLAND and RAYMOND MAYNARD,
Defendants-Appellees. EN BANC REHEARING FROM THE PANEL OPINION REPORTED
AT 855 F.3D 76 (2d Cir. 2017)

APPELLANT’S REPLY BRIEF

GREGORY ANTOLLINO, ESQ. Attorney for Plaintiff-Appellant 275 7th Avenue, Suite 705 New York, New York 10001
(212) 334-7397

BERGSTEIN & ULLRICH, LLP, Stephen Bergstein, Of Counsel Attorney for Plaintiff-Appellant 5 Paradies Lane New Paltz, New York 12561 (845) 469-1277
August 2017

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................ ii REPLY ARGUMENT ...................................................................................1
I. Amicus Adam Mortara Offers a Crabbed Reading of Title VII and Suggests Dismantling Time-Honored Methods to Enforce It...............1
II. Title VII Prohibits Discrimination Against the LGB under Sex Stereotyping. .........................................................................................4
III. Associational Discrimination Is Not Limited to Race. .......................12 IV. Sexual Orientation Discrimination is Sex Discrimination Per Se. .....13 V. Speculation about Non-Passage of Legislation Is Arbitrary and
Injudicious...........................................................................................22 VI. Defendants Have Waived their Opposition ........................................24
A. No Argument Appears in Defendants’ En Banc Brief...................24 B. Plaintiff Did Not Waive his Sex Discrimination Claim.................25 VII. The Constitutional Question Cannot Be Ignored. .............................27 CONCLUSION ............................................................................................ 30 CERTIFICATION .......................................................................................31
i

TABLE OF AUTHORITIES
Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)..................................................... 4 Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) passim Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (July 15, 2015) .............................. 26, 27 Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) .......................... 19 Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)............................................. 18, 19 Boutlier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016).......................... 12 Bowers v. Hardwick, 478 U.S. 186 (1986) ...................................................................... 6 Brown v. Mortg. Elec. Registration Sys., 738 F.3d 926 (8th Cir. 2013)........................ 25 Burnett v. Union R.R. Co., 2017 U.S. Dist. LEXIS 97825 (W.D. Pa. June 26, 2017) .. 20 Chandler v. James, 998 F. Supp. 1255 (M.D. Ala. 1997) ............................................. 17 Chiara v. Town of New Castle, 2 N.Y.S.2d 132 (2d Dept. 2015).................................. 12 Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) ................. 1, 8, 15, 28 City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ......... 22 Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) ................................... 13, 15 De Cintio v. Westchester Cty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986)................... 14, 15 DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015)........................................... 4 DeSantis v. Pacific Tel., 608 F.2d 327 (9th Cir. 1979).................................................. 17
ii

E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015)........................................................................................................................... 19
E.E.O.C. v. Scott, 217 F. Supp. 3d 834 (W.D. Pa. 2016)............................................... 20 Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110 (2d Cir. 1999) .................... 25 Evan Cho v. Pine-Richland Sch. Dist., 2017 U.S. Dist. LEXIS 26767 (WD. Pa. Feb. 27,
2017)........................................................................................................................... 19 Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), reh'g denied (July 6,
2017).................................................................................................................... passim Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015).................................... 26 Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016)........................ 19 Fed. Express v. Holowecki, 522 U.S. 775 (1998) .......................................................... 22 Finkle v. Howard Cty., Md., 12 F. Supp. 3d 780 (D. Md. 2014) .................................. 19 Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492 (M.D. Ala. 1996) ....... 17 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) .................................................. 18, 19 Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S.
280 (2010) .................................................................................................................. 22 Hamm v. Weyauwega Milk, 332 F.3d 1058 (7th Cir. 2003) .......................................... 17 Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) .... 22 Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016) (Hively I)................... 8, 23 Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (Hively II) .............. passim Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000)................................. 4
iii

Lawrence v. Texas, 539 U.S. 558 (2003). .................................................................. 6, 22 Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010)......................................................... 9 LGB v. Sessions., 917 F. Supp. 1558 (M.D. Ala. 1996) ................................................ 17 Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex.
2008 ............................................................................................................................ 19 Lorillard v. Pons, 434 U.S. 575 (1978) ......................................................................... 23 Loving v. Virginia, 388 U.S. 1 (1967)........................................................................ 6, 17 M. v. Superior Court, 450 U.S. 464 (1981). .................................................................. 18 Marbury v. Madison, 5 U.S. 137 (1803)........................................................................ 16 Maslenjak v. United States, 137 S. Ct. 1918 (2017) ........................................................ 4 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (U.S. Sup. Ct. No.
16-111), cert. granted, June 26, 2017 ........................................................................ 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ........................................... 10 Medforms, Inc. v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98 (2d Cir. 2002) ............... 27 Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) ...................................... 17 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........................................................... 5, 24 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)......................... 9, 10, 18 Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ..................................... 23 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................... passim Reeves v. Sanderson Products, 530 U.S. 133 (2000)....................................................... 4 Reiter v. Ctr. Consol. Sch., 618 F. Supp. 1458 (D. Colo. 1985).................................... 12
iv

Rewis v. United States, 401 U.S. 808 (1971) ................................................................... 4 Roberts v. Clark City SC. Dist., 215 F. Supp. 3d 1001 (D. Nev. 2016)......................... 19 Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014)..................................................... 7, 8 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)............................................ 19 Schwan v. Hartford, 204 F.3d 1187 (9th Cir. 2000); ..................................................... 19 Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ................................................... passim Smith v. Salem; Schwan, Rosa v. Park West Bank & Trust, 214 F.3d 213 (1st Cir.
2000);.......................................................................................................................... 19 Sogluizzo v. Int'l Bhd. of Teamsters, 514 F. Supp. 277, 278-79 (S.D.N.Y. 1981)......... 15 Spellman v. Ohio DOT, 2017 U.S. Dist. LEXIS 41636 (S.D. Ohio, Mar. 22, 2017) .... 21 Tavora v. New York Mercantile, 101 F.3d 907 (2d Cir. 1996) ...................................... 24 Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014)...................................... 22 Thompson v. Chi Health Good Samaritan Hosp. 2016 U.S. Dist. LEXIS 132331 (D.
Neb. Sep. 27, 2016) .................................................................................................... 21 Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) .............................................. 12 Uddoh v. United Healthcare, 2017 U.S. Dist. LEXIS 77460 (E.D.N.Y. May 22, 2017)
.............................................................................................................................. 14, 23 Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)................................. 8, 17 United States v. Patterson, 713 F.3d 1237 (10th Cir. 2013).......................................... 25 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ....................................... 7
v

Valentine Ge v. Dun & Bradstreet, Inc., 2017 U.S. Dist. LEXIS 9497 (M.D. Fla. Jan. 24, 2017)..................................................................................................................... 19
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) ........................................ 21 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015)............... 22 Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (1988)................................................. 2 Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1039 (7th
Cir. 2017).................................................................................................................... 19 Williamson v. A.G. Edwards & Sons, Inc., 876 F. 2d 69 (8th Cir. 1989) .......... 14, 17, 29 Windsor v. United States, 133 S. Ct. 2675 (2013). .................................................... 6, 24 Windsor v. United States, 699 F.3d 169 (2d Cir., 2012)............................................ 6, 24 Statutes 42 U.S.C. § 12112(b)(4) ................................................................................................ 12 42 U.S.C. §1983............................................................................................................. 18 Fair Labor Standards Act, 29 U.S.C. § 201 et seq. .......................................................... 7 Fed. R. App. P. 28.......................................................................................................... 25 Title VII of the Civil Rights Act of 1964 as amended ............................................ passim Other Authorities Nicholas Subtirelu, The Week, June 15, 2015................................................................. 1 Robert Katzmann, Judging Statutes, 2014 ................................................................. 5, 10 Richard Posner, Divergent Paths: The Academy and the Judiciary, 2016 ............ 4, 7, 14
vi

Robert Katzmann, Reading Statutes, 2014 ...................................................................... 5 Sylvia Law, “Homosexuality and the Social Meaning of Gender,” 1988 Wisc. L. Rev.
187 .............................................................................................................................. 16 William Eskridge, “Interpreting Legislative Inaction,” 87 Michigan Law Review 67
(1988). ........................................................................................................................ 22
vi i

REPLY ARGUMENT
I. Amicus Adam Mortara Offers a Crabbed Reading of Title VII and Suggests Dismantling Time-Honored Methods to Enforce It.
Amicus Adam Mortara (“Mortara”) presents the Court arguments failing to
engage the question presented. SPA.1-2. He does not even cite Christiansen v.
Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017), but mentions Judge Diane Sykes
eleven times. He invents odd or weary scenarios involving “black nail polish” and
opposite-sex use of single-sex restrooms (the bathroom antic is also employed by our
Department of Justice). Mortara complains of “verbal calisthenics” but to parse his
arguments requires the dexterity of a Yogi Master. Concealed in his points about
discrimination laws per se, is the unveiled denial that the best cases are sometimes found among ordinary people just trying to make a buck.1 But he is not joking (in his
mind) to suggest “considerable calisthenics may be required” to rejoin “intent [with]
intentional discrimination.” Br. at 12. He assumes intent is inordinately difficult to
prove. But discrimination plaintiffs don’t win without evidence and strong inferences.
1 Mortara’s perpetual indulgence in the term “homosexual,” with no concession to the slightest bit of elegant variation, is annoying: he should know “homosexual” is disfavored. Linguist Nicholas Subtirelu notes that “homo,” a slur, makes the word ugly. It also focuses on the sexual, rather than the human. The Week, June 15, 2015. “Homosexual” is associated with the opprobrious “homosexual agenda.” Think of Oriental – a word we’ve all abandoned. Similarly, “homosexual” “has the ring of ‘colored,’ as your grandmother might have said” (and my grandfather did). New York Times, March 21, 2014, “The Decline and Fall of the ‘H’ Word,” quoting historian George Chauncy.
1

Mortara wants scientific proof, barring valid legal theories. Discrimination, he argues, is about America’s original sin. However, his analysis wouldn’t detect racial sin with skilled lawyering. Close cases count, and Title VII deters bias.
Mortara begins with the shaded premise that proving discrimination should be limited to “outliers,” not everyday claims like Zarda’s from the “mine run” - of common grade. Don’s claim was from the “mine run,” but in the offing he lost his job, livelihood and professional identity because he acknowledged himself as gay. Discrimination, according to Mortara, should not be prosecuted unless gapingly obvious and scientifically verified by regression analysis, because the employer’s position is of great importance. But he misrepresents Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (1988), which does not hold that “disparate treatment analysis” does not combat subconscious prejudices; it holds that disparate impact analysis might be better because “a facially neutral practice, adopted without discriminatory intent, may have effects . . . indistinguishable from intentional[]” discrimination. Id. at 990. Disparateimpact analysis, however, often requiring expensive expert proof, is usually inapplicable to small samples, and shuts most aggrieved employees out of court. If she’s gay, she can’t even find a lawyer in Upstate New York or Connecticut, because the laws there don’t pay fees. A federal employee has no protection at all.
Mortara prefers hard data and scientific confirmation, as well as the strict rules of post-conviction proceedings; but his views would be dangerous. His intellectual
2

patron, Judge Sykes, provided the soil for his analysis, which refuses to recognize the usefulness of sex-stereotyping á la Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) to ferret out discriminatory intent. 2 Would it were so that we could prove and rid society of subconscious bias; deep down, the self-reflective recognize it in ourselves. Discrimination – let alone subconscious bias – cannot always be proven. But the Supreme Court has developed tests to find it in certain scenarios. To suggest that only the most obvious cases proceed, or those that can be proven scientifically is crass, an affront to nationwide jurisprudence; it scoffs at the idea that all discrimination, even that from the mine run, is abhorrent. We acknowledge it often can’t be proven under the tests we employ, and that many aggrieved employees are wounded in ways the law doesn’t protect. But that is what lawyering and legal analyses are for: a fair examination as to what “really happened.”
“What actually motivated an employer’s decision” is best explained by the employer, Mortara contends. Br. at 12. (This position would probably disallow a trial every time.) He derives this analysis, improperly, from a phrase in Reeves v. Sanderson Products, 530 U.S. 133 (2000), br. at 11, which held, “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation.” 530 U.S. at 147. Reading this case and interpreting it for the opposite of what it stands for abandons reason. 2 Despite Mortara’s faithful use of “(plurality opinion)” following his citations to Price Waterhouse, the case is binding as codified. 42 U.S.C. § 2000e-2(m).
3

II. Title VII Prohibits Discrimination Against the LGB under Sex Stereotyping. We don’t advocate a Title VII “exception” to statutory interpretation, but not all
statutes are bound by Crazy Glue or governed by definitions found in grimy dictionaries. Courts interpret statutes variously; their meanings change, and some statutes are interpreted more liberally than others. Habeas cases often go nowhere because of procedural waivers, but the High Court just extended equity to an immigrant who immaterially fibbed on a citizenship application. Maslenjak v. United , States 137 S. Ct. 1918 (2017). Purely criminal laws are resolved with lenity when they can be read in dissimilar ways. Rewis v. United States, 401 U.S. 808, 812 (1971). Most importantly, courts read Title VII broadly. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975); DeMasters v. Carilion Clinic, 796 F.3d 409, 424 (4th Cir. 2015) (Title VII must be construed “as a broad remedial measure.”); Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000). First came the words “because of . . . sex”; then came sex stereotypes as a means to define discrimination; then came gay people, now constitutionally protected, demanding again a right to be read into accepted statutory interpretation. We suggest Mortara’s analysis is the exception. See generally, Richard Posner, Divergent Paths; Robert Katzmann, Reading Statutes, 2014.
In Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (Hively II), Judge Posner’s concurred, id. at 353, which echoed Obergefell v.
4

Hodges, 135 S. Ct. 2584 (2015) that the law is grounded in life as lived. Justice Kennedy held in Obergefell, “marriage is essential to our most profound hopes and aspirations [whose] centrality . . . to the human condition makes it unsurprising that the institution has existed for millennia . . . marriage has transformed strangers into relatives . . . . but it has not stood in isolation from developments in law and society. . . . That institution—even as confined to opposite-sex relations—has evolved over time.” Id. at 619, 621 (emphases added). Judge Posner noted similarly his observation that if asked in 1964 if he’d ever met a gay man or lesbian, he would have said no. Id. at 353. Probably no members of Congress in 1964 were thinking about gay people, but neither were they thinking about how courts would interpret the sparse wording of Title VII in fifty years. Judge Posner’s concurrence is compatible with Obergefell and what Chief Judge Katzmann wrote in Judging Statutes, 2014: “[T]he fundamental task for the judge is to determine what Congress’ [purposeful act] . . .in passing the law[.]” Id. If Courts had not developed methods to interpret Title VII, discrimination could rarely be proven, the purpose of the statute defeated.
Yes, courts have rejected what we advocate, multiply. But courts have begun to smell the bacon and recently not been so stingy. Bowers v. Hardwick, 478 U.S. 186 (1986) was overruled in 2003, with Justice Kennedy noting that “stare decisis is essential . . . not, however, an inexorable command. . . . Bowers was not correct when
5

it was decided, and it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578
(2003). Bowers inflicted harms, which still need amelioration. Simonton v. Runyon,
232 F.3d 33 (2d Cir. 2000) – certainly not to ascribe ill motives to the panel, whose
intent we’ll never know – took a bad pleading, and produced a decision as now
interpreted that does not comport with contemporary freedom. Nor does Simonton
mesh with valid analyses in proving discrimination or the Equal Protection conferred
by the gay marriage cases, one of which originated here. Windsor v. United States,
699 F.3d 169 (2d Cir., 2012), aff’d 133 S. Ct. 2675 (2013). As the majority in Hively
II reminded us, anti-miscegenation laws were always inherently racist. “But [in] 1967
. . . [after passage of Title VII, 16] states still had these
laws . . . defended and understood as non-discriminatory because the legal obstacle affected both partners. . . . Loving recognized that equal application of a law that prohibited conduct only between members of different races did not save it. Changing the race of one partner made a difference in determining the legality of the conduct, and so the law rested on ‘distinctions drawn according to race,’ which were . . . discriminatory. So too, here. If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.
Hively II, 853 F.3d at 348-49 (7th Cir. 2017). Mortara dismisses Loving with no
explanation other than a unexplained assertion that it doesn’t apply.
This case also has much to do with associational discrimination, which Mortara
and DOJ think non-existent or applicable only to races, not sexes. But from where
does that interpretation arise? A man who is treated differently for associating with a
woman – or a man – is treated differently because of sex. This analysis applies to a
6

straight bartender who worked in a gay establishment and is fired for being straight as much as a skydiver who is fired for identifying as gay.
Judge Posner’s concurrence is but an honest breath away from recognizing this socio-statutory discord when he offered a candid account of the court’s interpretations of aged laws in his concurrence, echoing Divergent Paths: Statutes cannot be interpreted reflexively, eternally, but must be construed in light of modernity: “I would prefer . . . that today we . . . avoid placing the entire burden of updating old statutes on the legislative branch.” Hively II, 853 F.3d at 357. Same-sex love, attraction, and companionship were once illegal or opprobrious, but now same-sex marriage is constitutionally protected. If Congress won’t pass legislation, courts cannot resist a valid judicial solution.
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014), a case under the Fair Labor Standards Act, involved the antiquated terms “donning and doffing,” Mortara br. at 8. Sandifer includes perhaps the most elementary sentence ever seen in Supreme Court jurisprudence: “We begin by examining the meaning of the word ‘clothes.’” 134 S. Ct. at 870. While the word “clothes” is simple, “discrimination” is “complex.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). In Nassar, a 5-4 Court found that retaliation under Title VII can be proved only by “but for” causation, while status discrimination may be proved by “motivating
7

factors.” Id. at , 2521. This is high statutory interpretation, much more intricate – and deeply debated – than a definition of “clothes.”3
Mortara’s originalist approach fails. It is unremarkable that “sex” refers to
“male and female human beings,” br. at 6, but neither Mortara nor DOJ analyze that
antigay discrimination constitutes sex discrimination under traditional male and
female roles. See Hively II (lesbian “described paradigmatic sex discrimination,” and
“[t]o use the phrase from Ulane” v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.
1984), defendant “is disadvantaging her because she is a woman” associating with
other women); Christiansen, 852 F.3d at 202; see also Hively v. Ivy Tech Cmty. Coll.,
830 F.3d 698 (7th Cir. 2016) (Hively I) (no need to expand the definition of ‘sex
discrimination’ beyond the narrow understanding adopted in Ulane to conclude that
LGB employees terminated for . . . sexual orientation have been discriminated against
on the basis of sex.”). Discrimination “because of . . . sex” is not self-evident from this
analysis, Mortara suggests. Br. at 8. To so suggest, however, overlooks the Supreme
Court’s corrections of unduly restrictive readings of “sex.” See Oncale v. Sundowner
3 Sandifer also considered a range of interpreting factors, like statutory context, the jurisprudential, practical consequences of alternative interpretations, and earlier FLSA holdings. 134 S.Ct. at 877-881. While the Justices considered the burden of proffering interpretations to the judiciary, they opted to “give the [statutory] text . . . a meaning that avoids . . . inconsequential judicial involvement in a ‘morass of difficult, fact-specific determinations’” Id. at 881 (citation omitted). Analogous factors in Zarda weigh in favor of our contentions, because while each discrimination claimant is unhappy, each is unhappy in his own way – whether outliers or from the mine run. Each case requires a factually specific definition of the aggrievance claimed and the category of discrimination, both of which require individual definitions.
8

Offshore Servs., Inc., 523 U.S. 75, 79-81 (1998). Mortara says we cannot rely on Oncale alone. Thus, we present Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010): “It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Id. at 215.
Mortara derides “creative legal reasoning” and the application of . . . hypothetical[s] that the employer never even considered do not make firing an employee for being a homosexual into firing that employee for being a man. Deploying the comparative test to interpret Title VII . . . to supplant an employer’s opposition to homosexuality . . . with another motive loses the plot entirely. It substitutes the useless results of a thought experiment . . . for what the Supreme Court has said really matters. Br. at 12. How Mortara would know what any employer “never even considered” is purely speculative, but he then cites the Hively II dissent rather than the Supreme Court. He suggests that that use of “comparators is a rigged game,” br. at 11-12, but what does this mean? If an employer fires a man because he’s obviously queer, but not a “Marlboro Man” co-worker, that’s a sex stereotype: men are traditionally expected not to be, or act, queer. It’s known as “sex plus” discrimination, as held in Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004), where the Court found discrimination because a woman with children was perceived a less efficient worker; she had no comparators. What the Supreme Court has said “really matters” is that discrimination is illegal; it has recognized the difficulty in its identification and proof and recognizes the use of comparators, depending on the case: Mr. Oncale had no comparators. Intent is usually inferred by circumstantial evidence;
9

as such, the High Court recognized sex stereotyping in Price Waterhouse, many years after it invented the burden-shifting approach in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). McDonnell-Douglas will or will not allow a plaintiff get to the jury, which decides intent and whether the violation, an outlier or from the mine run, violates Title VII.
The DOJ founders in maintaining that Title VII requires a sex-discrimination plaintiff to identify similarly situated employees of the other sex who have been treated more favorably. See DOJ Brief at 4. In Back, however, the Court held that identifying similarly situated employees might help a plaintiff prove her case, but “there is no requirement that such evidence be adduced,” because “the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of” others. 365 F.3d at 121.
“Clothes” is probably more easily defined than race, sex, religion, etc., but Mortara’s analysis of Title VII is simultaneously overthought and overly simplistic. Intent can almost never be proven with certainty but proving discrimination would nigh be impossible if “creative legal reasoning and . . . hypothetical[s]” could not be used in enforcing the law. The categories in the statute are not at issue per se, but how, as Judge Katzmann called “The Purposive Approach,” Judging Statutes, pp. 32-35, courts effect Congress’ purpose in protecting discrimination against these categories. “Creative legal reasoning” has found ways to ferret out discrimination. This Court
10

knows that the majority of employment cases go down ablaze because plaintiffs cannot gather enough (or any) inferences of discrimination. But throw out these theories and you can forget about enforcement of any anti-bias laws, all of which deter discrimination without a lawsuit.4
Mortara, an intelligent outsider looking in, clarifies something one steeped in the practice might not see: The words in Title VII might be defined easily to civilrights practitioners, but the bases advanced to prove a violation in the statute are not. But if they are absent and not applied to a hypothetical set of facts under a creative legal theory, Title VII means nothing. Proof of discrimination requires a meticulous search for clues: that’s why those cases from the “mine run” might be the best. A plaintiff must construe the evidence to fit within one of these theories, or will lose. No matter how simple the words are defined, without these theories in application of Title VII, the Civil Rights Act is nothing but ink on paper. The theories allow for prohibition of sexual orientation discrimination under the associational theory, and sex stereotyping under Price Waterhouse. The majority in Hively II got it right and we urge this court to follow Chief Judge Wood. But we acknowledge that an outsider’s view is a gift requiring heavy thought in its refutation.
4 If anything, cases from the mine run are often more important than the outliers, because employers who govern the mine run often flout the law, or don’t know how to enforce it.
11

III. Associational Discrimination Is Not Limited to Race. Discrimination by association is discrimination. Mortara, see br. at 14, and
DOJ, br. at 21-22, try to escape from this theory by suggesting it only applies to race, not sex – or, implicitly, any other categories in Title VII. But Mortara refutes himself, citing a nun’s claim that she was discriminated against based on association with “Spanish” persons. Reiter v. Ctr. Consol. Sch., 618 F. Supp. 1458 (D. Colo. 1985). “Spanish” is an ethnicity or National Origin. Id. at 1459. Both opponents also ignore Boutlier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016), which applies associational discrimination to sex, which we held high in our opening brief.
Additionally, while not precisely on point, a New York court found a cause of action in association on the basis of religion. Chiara v. Town of New Castle, 2 N.Y.S.2d 132 (2d Dept. 2015). Also, the Americans with Disabilities Act codifies associational discrimination. 42 U.S.C. § 12112(b)(4). Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) even suggests that associational discrimination applies to a person aggrieved by retaliation; in that case, the plaintiff originally complained of sex discrimination. 562 U.S. at 172.
As much as our opponents would love to defeat this contention by the insistence that limits it to ugly, newsworthy race claims, with tiny exception, all categories within Title VII are interpreted equally. Price Waterhouse v. Hopkins, 490 U.S. 228, 295 (1989). Associational discrimination harms person who associate with a particular
12

sex. Zarda associated with men on a level such that the mention of his ex-husband got him fired. That’s associational discrimination and that alone allows this case to go back to the district court. DOJ and Mortara misperceive, misrepresent, or attempt to obfuscate this theory, but they cannot overcome this. IV. Sexual Orientation Discrimination is Sex Discrimination Per Se.
We agree with Hively II that the plaintiff was disadvantaged because of her sex. 853 F.3d at 346: “It is critical, in applying the comparative method, to be sure that only the variable of the plaintiff's sex is allowed to change.” Had Hively been a man, her attraction to women would have meant nothing, just as had Don Zarda been a woman, had he said, “I’m going home to my wife,” as his supervisor Winstock said, no one would have complained about “personal information.” It’s not “misconduct” if a rule against disclosure applies to one who conforms to typical gender roles but not one who does not.
A year before Simonton was reaffirmed, misconstrued or clarified in Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), this Court decided Back., holding that “[w]hat constitutes a ‘gender-based stereotype’ [under] Price Waterhouse . . . must be answered in [its] context . . . without undue formalization.” 365 F.3d at 11920. While Back was unexamined in Dawson, it must be examined now, especially given that the LGB are entitled to Equal Protection.
13

No Court should excise strapping, gay lumberjacks or lipstick lesbians from the entrée to sex discrimination claims: that is “undue formalism.” By now, Simonton stands for one thing: Title VII does not protect against sexual orientation discrimination under any theory available to heterosexuals. This was held true just months ago. Uddoh v. United Healthcare, 2017 U.S. Dist. LEXIS 77460, *18 (E.D.N.Y. May 22, 2017) (Cogan, J.).
How did this jurisprudence originate? As far as we have researched, the first time a gay man reached a Circuit Court pleading discrimination as to his race, his case was transformed, sua sponte, into something non-actionable; nevertheless, it seemed as if he had colorable case of disparate treatment. Williamson v. A.G. Edwards & Sons, Inc., 876 F. 2d 69 (8th Cir. 1989) (comparing black and white comparators, no matter their sexual orientation). Call it “the legal inference that dare not speak its name.” Williamson snowballed. Courts reached the conclusion that Williamson decided sua sponte (the reflexivity derided in Divergent Paths), often making dubious analogies to avoid LGB protection – and it started with one court’s analysis of a gay man’s claim that he didn’t plead. In Simonton, Williamson was grouped with De Cintio v. Westchester Cty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986), a nepotism case based in heterosexual romance. De Cintio is easily distinguishable: “Nepotism of itself does not violate Title VII. To come within the [law], nepotism must somehow be
14

related to . . . discrimination based . . . [a] protected class.” Sogluizzo v. Int'l Bhd. of Teamsters, 514 F. Supp. 277, 278-79 (S.D.N.Y. 1981) (Weinfeld, J).
As De Cintio (and other cases) were patched together to create Simonton, Dawson struck down any ambiguity for gays under Title VII. If Back, from 2004, holds that sex discrimination should not be interpreted with undue formalism, Dawson might have resolved the question differently; instead, it cemented the notion, arguably in dictum, that “a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII.’” 398 F.3d at 218. If this were the sole lesson of Simonton, then Dawson overlooked Back’s caution against “undue formalism.”
Chief Judge Katzmann, with Judge Margo Brodie, invoked Back in Christiansen, 852 F.3d at 205. (Tellingly, Judge Katzmann did not join Part II of Simonton.) Read a certain way, though, Simonton Part II dovetails with the Department of Justice's unexpected, nostalgic interpretation of “sex.” But, though the language of the text speaks for itself, the oppositions’ interpretations are retrograde, “undue formalisms”5 that ignore Title VII’s overarching purpose and, more importantly, how judicial interpretations hold sex discrimination may be proven.
5 “Because of . . . sex” under Title VII is easily interpreted to include sexual orientation, as Hively II held. The phrase “sexual harassment” is absent from the statute, see Lambda br. at 14, but it was initially rejected, even though “coverage of sexual harassment has been hornbook law for . . . decades.” Id.
15

Furthermore, insofar as the DOJ and other amici mention “religious beliefs” and “family values” that is discrimination in itself. This is a secular nation that allows free exercise of religion, but for the government to invoke it so carelessly violates the Establishment Clause. (The Supreme Court will work out the religious tension in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (U.S. Sup. Ct. No. 16-111), cert. granted June 26, 2017.) Insofar as “familial roles” are at stake, that feeds into our position that enforcing these traditions is the real reason for the opprobrium invited upon gay men and lesbians, as Professor Law explained in “Homosexuality and the Social Meaning of Gender,” 1988 Wisc. L. Rev. 187: discrimination against sexual minorities has been a pretext for enforcing the traditional family unit and the subjugation of women.
The DOJ suggests “moral beliefs” are also at hand. Br. at 20. “Morality” is undefined but, in this context, our government unashamedly implies that being gay is immoral. Most Americans think not, but for a secular government to argue so nakedly in an appellate brief crosses the line into bigotry.6 We hope the Court explicitly rejects AG Sessions’ narrow moral vision, especially coming from a public official. The time has arrived to allow Zarda’s interpretation(s) to take hold, to overrule Simonton and
6 The Attorney General opines against this case, but perhaps his world differs than those who don’t consider LGBT marriage, nor gay orientation, remotely “immoral.” See Pew Forum, http://www.pewforum.org/fact-sheet/changing-attitudeson-gay-marriage/. The DOJ exercises discretion whether to enforce discrimination laws against local governments, and this Court interprets laws irrespective of his sensibilities. Marbury v. Madison, 5 U.S. 137, 167 (1803).
16

simply recognize the obvious truth that same-sex attraction is associational
discrimination and the ultimate sex-stereotype: it is as immutable as heterosexuality,
or as any person’s physical, affectional or romantic attraction (or lack thereof) to
another person. Justice Edwin Cameron of the South African High Court spoke for
every young gay man growing up in a world hostile to his humanity: struggling with
shame for his “immorality” and pretending to be what he was not. Justices: A Personal
Account, 19.
Undefined “morality” is not a reason to deny any appeal,7 nor are religious
beliefs as to what constitutes family.8 In supporting these dubious contentions, the
DOJ relies on overruled cases,9 an abrogated disposition,10 Williamson (the race
7 Are AG Sessions’ views on “sex,” influenced by his view of the “morality” of being LGB? We won’t opine, merely report these historical facts: As Alabama Attorney General, he thrice fought LGB students’ attempts to assemble and discuss their rights and HIV prevention. Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1498 (M.D. Ala. 1996) (injunction enforced); Id., 917 F. Supp. 1558, 1560-61 (M.D. Ala. 1996) (fees to plaintiffs exceeding $81,500); Chandler v. James, 998 F. Supp. 1255, 1261 (M.D. Ala. 1997) (Sessions “was particularly concerned about [meetings concerning] ‘safe sex’ and” STD’s).
8 A belief that the law must align with religion was the basis for denying the Loving’s of Loving v. Virginia the right to marry in their home state: “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” 388 U.S. 1, 3 (1967) (quoting Virginia court).
9 Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984); Hamm v. Weyauwega Milk, 332 F.3d 1058 (7th Cir. 2003), both overruled by Hively II.
10 DeSantis v. Pacific Tel., 608 F.2d 327 (9th Cir. 1979), noted as abrogated in Nichols v. Azteca Rest. Enters., 256 F.3d 864, 875 (9th Cir. 2001).
17

discrimination case involving gay men), a statutory rape case,11 cases not on point or no longer followed, and an almost forgotten 1979 decision that pre-dated Price Waterhouse: Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). But law and life have changed since 1979 and 1964. Let us emerge from what Hively II, characterized as a “hodge-podge of cases,” 853 F.3d at 342. quickly and decisively.
Blum is what the Eleventh Circuit majority resurrected from its predecessor circuit in Evans v. Georgia Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), reh'g denied (July 6, 2017). But, oddly, the Eleventh Circuit years ago decided that transgender plaintiffs state a sex-stereotyping cause of action. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). Transgender discrimination is now considered a well-settled question under Title VII and 42 U.S.C. §1983, yet LGB discrimination is not – at least not yet. Why? Perhaps history scholars will tell us, but these cases are inconsistent with cases that gerrymander the LGB out of a sex-stereotyping theory of discrimination that applies and would find discriminates against them because of sex. What do our opponents say about this contradiction? Nothing. Perhaps they didn’t notice, but a static view of Title VII with a comparison to wage laws and a definition of “clothes,” an abstruse academic analysis and “give me some of that ol’ time religion just cannot suffice in distinguishing these cases.”12
11 M. v. Superior Court, 450 U.S. 464 (1981). 12 This is why we omit “T” after “LGB.” The “T” deserve protections, however, and after Oncale, federal courts interpreting statutes proscribing sex
18

Blum, the olden basis for Evans exhumed from the grave, was decided well
before Price Waterhouse, as noted by Judge Rosenbaum in dissent, who pointed out
the intellectual inconsistency between Judge William Pryor’s joining Glenn, yet
refusing to extend the same analysis to Evans. 850 F.3d at 1256. This Court should
not do with Simonton what the Eleventh Circuit did with Blum. Simonton has indeed
influenced other Circuits – most recently in Evans – but many other courts –
including, quietly, the Third Circuit – have moved further towards plaintiff in
allowing even a “guy’s guy” attracted to men access to Title VII. Despite Bibby v.
Phila. Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001), several courts of
that Circuit have taken a 180-degree turn. Bibby affirmed the dismissal of a complaint
discrimination found protection for transgender individuals, even if other cases in support of lesbians, gay men, or bisexuals failed. See Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1039 (7th Cir. 2017); Smith v. Salem; Schwan, Rosa v. Park West Bank & Trust, 214 F.3d 213 (1st Cir. 2000); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Schwan v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Evan Cho v. Pine-Richland Sch. Dist., 2017 U.S. Dist. LEXIS 26767 (WD. Pa. Feb. 27, 2017); Valentine Ge v. Dun & Bradstreet, Inc., 2017 U.S. Dist. LEXIS 9497 (M.D. Fla. Jan. 24, 2017); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016) (noted in Hively II); Roberts v. Clark City SC. Dist.,, 215 F. Supp. 3d 1001, 1014 (D. Nev. 2016); E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015); Finkle v. Howard Cty., Md., 12 F. Supp. 3d 780 (D. Md. 2014); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008).
These cases involving transgender men and women, courts did what we ask for here with no “undue formalism” – deciding whether a transgender person fits under a category in the statute, as interpreted, and, if so, should the court entertain the claim?” The answer to the question was uniformly “yes.” So should it should be here: May the court not parse the alleged strictness of definitions in a statute that should be interpreted “broadly.”
19

by a gay man, but held, as Simonton might have, that “a plaintiff may be able to prove that same-sex harassment [is] discrimination because of sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.” Id. But the plaintiff in Bibby – as in Simonton – did not plead his claim properly: he merely argued sexual orientation was a protected class under Title VII vel non. We agree it is not, but it may be actionable if pled, argued and proved properly as “sex discrimination” as a sex stereotype (or an associational bias). See also Burnett v. Union R.R. Co., 2017 U.S. Dist. LEXIS 97825 (W.D. Pa. June 26, 2017), which allowed a sex-stereotyping claim to proceed where the plaintiff “was subjected to ongoing and pervasive harassment by co-workers and supervisors referring to him as ‘fag,’ ‘butthole Burnett,’ . . . ‘hot anus,’ and ‘hot butt fagot’ [sic] and being asked whether he ‘was taking it up the ass . . . lately.’” Id. at *11. There was no allegation that, in addition to this harassment, he possessed a “woman’s touch.” Indeed, it was unclear if he were even gay, and the decision did not even focus on that issue. Id. at **2-3. Accord, EEOC v. Scott, 217 F. Supp. 3d 834, 839-40 (W.D. Pa. 2016) (“The Supreme Court has consistently applied a broad interpretation of the ‘because of sex’ language in Title VII [which by extension] prohibits discrimination on the basis of sexual orientation. . . . The Court sees no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”) (Emphasis added.)
20

Thus, the question is whether a person is perceived and discriminated against on the basis of sex stereotypes, not whether that person is or is not LGB, even though the perception and knowledge dovetail since same-sex attraction is the ultimate sex stereotype whether it is suspected or held in the open. Any distinction is a gerrymander originating from a race discrimination case, a distinction without a difference, disparate treatment and a denial of Equal Protection. We cannot live in a country where getting legally married can legally get one fired. Indeed, recent district court decisions get it right: a new generation of judicial thought and contemporary habits is changing the legal landscape. See, e.g., Thompson v. Chi Health Good Samaritan Hosp. 2016 U.S. Dist. LEXIS 132331, at *5 (D. Neb. Sep. 27, 2016) (plaintiff proceeds in a sex-stereotyping and associational discrimination theory of discrimination because he “is a male who does not conform to sexual stereotypes . . . [and] was subjected to discriminatory and stereotypical language and treated poorly after appearing at a social event with a male rather than a female.") In Spellman v. Ohio DOT, 2017 U.S. Dist. LEXIS 41636 (S.D. Ohio, Mar. 22, 2017), the court allowed the case to go to trial, holding that statements and conduct of plaintiff’s coworkers “were harassment ‘because of . . . sex’ [in that] they concerned [Spellman’s] sexual orientation or gender non-conforming behavior.” Id. at *24-25.13 See also
13 Spelman declined to follow Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006), and instead invoked the EEOC’s persuasive, perhaps decisive decision in Baldwin v. Foxx, 2015 EEOPUB LEXIS 1905 (July 15, 2015). Vickers had refused
21

Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (where plaintiff's sexual orientation was inconsistent with the defendant's perception of acceptable gender roles, plaintiff states a claim of sex discrimination); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1222 (D. Or. 2002) (“[n]othing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees alone”); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) ( “the line between sex discrimination and sexual orientation discrimination . . . “does not exist, save as a lingering and faulty judicial construct.”)
This “faulty judicial construct” and “the simple test,” City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978), simply do not jive. V. Speculation about Non-Passage of Legislation Is Arbitrary and Injudicious.
Legislative non-action can be used to support nearly any position. William Eskridge, “Interpreting Legislative Inaction,” 87 Michigan Law Review 67 (1988). How can that help any Court? Justice Scalia, never considered a cheerleader for the “homosexual agenda,” Lawrence, 539 U.S. at 602, rejected this construction as well: “The Constitution gives legal effect to the ‘Laws’ Congress enacts . . . not the objectives members aimed to achieve in voting for them.” Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010).
a similar Title VII claim to proceed. 453 F.3d at 764. Contrary to DOJ’s assertion, the Supreme Court has held that the EEOC is entitled to deference to interpret its own regulations, Fed. Express v. Holowecki, 522 U.S. 775 (1998).
22

The DOJ’s response: Unsophisticated contradiction that doesn’t carry a response. The Employment Non-Discrimination Act (or other incarnations) have not passed so many Congresses, so that disproves their theory, they argue. But where is DOJ’s answer to Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)? LTV plainly derides the negative legislative history method of statutory interpretation, but is undistinguished. Given LTV, it is reasonable to infer – and not impossible to disprove – that a majority of those who don’t vote for particular legislation took that position because they believed it was covered by other legislation, as LTV specifically holds? 496 U.S. at 650. Given that legislative inaction can be used to support any proposition, the DOJ asks this Court to engage in results-oriented jurisprudence. But the modern weight of authority has spoken, somewhat loudly. A couple of cases like Evans and Uddoh grasp for one last stab at the (hopefully) moribund Simonton, but even defense counsel admits that case is gasping its final breaths. As the majority aptly noted in Hively I, “Society cannot “continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” 830 F.3d at 718.
DOJ also cites Lorillard v. Pons, 434 U.S. 575 (1978), for the proposition that “Congress is presumed to be aware of. . . [a] judicial interpretation of a statute and to adopt that interpretation when it re-enacts that statute without change.” Id. at 580. Its
23

argument is that sexual orientation didn’t get added to Title VII when the Civil Rights Act was amended, so therefore Congress was aware of previous judicial interpretations of that statute. Br. at 8-9. We suggest this is simplistic reasoning but will agree, and the argument feeds perfectly into our line of reasoning: Price Waterhouse had been decided just two years prior to the amendment, and sex stereotyping was born of that decision. Congress was aware of that interpretation and thus the inference that sexual orientation discrimination could be combatted by a sexstereotyping theory allows the perfectly sensible inference as to why Congress did not reference sexual orientation in the amended statute in 1991: It was already there under “sex.”14
VI. Defendants Have Waived their Opposition A. No Argument Appears in Defendants’ En Banc Brief. The parties were to brief a particular question. SPA.1-2. Defendants failed in
this, other than to concede that Simonton is “undeniably outmoded.” Def’s Br. at 18. We appreciate their intellectual evolution, but it is not enough for defendants to reference its panel brief, as it does. Id. at 15-16. Appellate rules require that litigants
14 The DOJ cites hairstyle and bathroom cases, but these comparisons are fallacious. While, for example, Tavora v. New York Mercantile, 101 F.3d 907 (2d Cir. 1996), held that Manhart’s “simple test” will not extend to matters that the court deems “trivial,” id. at 908, this limited exception cannot excuse sexual orientation discrimination, as this and the Supreme Court's decisions in Windsor and Obergefell, grounded in the Constitution, foreclose the inference that sexual orientation is a “trivial” matter.
24

lay out arguments in their briefs. Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (citing Fed. R. App. P. 28.) These requirements are mandatory, so the defense is in default. Ernst Haas Studio.
Defendants also refer to arguments raised before the panel, but this tactic is improper. See Brown v. Mortg. Elec. Registration Sys., 738 F.3d 926, 934 n.8 (8th Cir. 2013) (We do not address [the] arguments [raised below], however, because [appellant] failed to meaningfully argue them in her opening brief.”) Accord United States v. Patterson, 713 F.3d 1237, 1250 (10th Cir. 2013) (“adopt[ing] district court filings would . . . effective[ly]. . . circumvent[] the page limitations on briefs . . . and . . . complicate the task of an appellate judge.’”).
B. Plaintiff Did Not Waive his Sex Discrimination Claim Defendants argue that Zarda seeks an “advisory opinion” because he did not raise his “putative sexual orientation discrimination claim arising under Title VII” until his motion for reconsideration in the district court. Def's Br. at 19. We did suggest the judge allow the jury to give an advisory verdict, but this Court doesn’t give advisory opinions, especially in the rare en banc. So defendants are plainly wrong. Zarda did not allege in his EEOC charge that he suffered “sexual orientation” discrimination, id. at 20-24, but “sex discrimination” based on sex stereotyping. The Amended Complaint does the same. Id. at 28-29. In his EEOC charge, Zarda checked the box for “sex,” SA.2, and there is no box for sexual orientation. Our argument on
25

this rehearing is that sexual orientation is an aspect of sex discrimination. Any omissions in the charge were logical, as in 2010 the EEOC had not yet found sexual orientation violated Title VII. Baldwin. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 386 (2d Cir. 2015) (extending equitable tolling because transgender discrimination charge would have been futile at an earlier time).
In his EEOC narrative, Zarda claimed he suffered gender discrimination because he was treated differently because of his sexual orientation and because he did not conform to sex stereotypes. SA.3. He wrote, “My claim is because I did not conform my appearance and behavior to sex stereotypes, I suffered adverse employment action, and was discriminated against, at least in part because of my sex." Id. at ¶ 2. He went on, “it was known at work that I am gay and . . . open about it. My boss, however . . . was hostile to any expression of my sexual orientation that did not conform to sex stereotypes,” from whence he cites specific examples. Id. at ¶¶ 3, 5. Moreover, Maynard “tolerated men discussing women and their physical attributes.” Id. at ¶ 6. “Men often talked of their sexual exploits, and [Maynard] openly discussed his marriage. My mentioning . . . that I was gay to a passenger, however, got me fired.” Id.
That narrative is consistent with Plaintiff's position throughout this case: sexual orientation discrimination is sex discrimination, in part, because sexual orientation discrimination relies on the stereotypes that Title VII prohibits. Zarda placed the
26

EEOC, Defendants and the courts on notice that he was pursuing this claim, and years later, almost immediately after Baldwin v. Foxx, was handed down, 2015 EEOPUB LEXIS 1905 (July 15, 2015), he moved to reopen Title VII – a motion the lower court denied, given Simonton. Zarda need not have filed another amended complaint, as to do so would have been futile. SPA. 64-66.
Moreover, before the district court and three-judge panel, Defendants never argued waiver. Defendants have thus waived any waiver. Medforms, Inc. v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98, 109 (2d Cir. 2002). VII. The Constitutional Question Cannot Be Ignored.
While DOJ speaks of “morality” – principles distinguishing between good and bad – Mortara laments with hyperbolic drama that to grant this appeal would be the death of liberty. Br. at 21. The most recent Oxford English Dictionary defines “liberty” as “the state of being free [in] society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views[.]” That seems a fair summary of the word, which our nation has embodied into a Constitution, that includes Equal Protection. The LGB got that liberty years ago, yet may lose employment because of it if sex stereotyping is placed in a narrow box limited to race hatred, and only outlying cases easily proven. What “liberty” does Mortara suggest is breached? The tyranny of judicial interpretation of simplistic terms in the context of
27

accepted theories of discrimination? If so, Lady Liberty’s scales don’t seem to tip in
favor of his interpretation.
Mortara wants the Court to reject Hively II insofar as the majority played
“Scrabble” with Price Waterhouse. Judge Sykes’ interpretation of Price Waterhouse
and Judge William Pryor’s personal views in the distinction between gay status and
conduct will hopefully never hold sway, not even in their respective Circuits.15 But
speaking of word games, Mortara likes them too. He continually referred to “Zarda”
as “she.” Don was a “he.” The Estate is an “it,” and the executors, combined, are
15 Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1258-61 (11th Cir. 2017). Amicus Christiansen with Professor Anthony Kreiss take issue with Pryor
who argues that the “doctrine of gender nonconformity is, and always has been, behavior based,” and therefore sexual orientation discrimination claims do not necessarily qualify as nonconformity because LGB persons do not inherently violate gender norms. Id. at 1258. “Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation.” Id. “Some gay individuals adopt what various commentators have referred to as the gay “social identity” but experience a variety of sexual desires.” Id.
Kreiss argues that the “status-conduct dichotomy belies the actual lives of the LGB and this logic . . . “tip toe[s] around the question.” Br. at 11.
We agree to a point, but also thank the Judge for not using “homosexual.” We ask, nevertheless, is this analysis not stereotyping in itself? Judge Pryor admits to a “disproportionate correlation” of gays non-conforming to sex stereotypes; Zarda fell within this statistical pool. What about one who covers his sexuality – perhaps because of “immorality” – and thereby disallows his behavior to be sex non-conforming? Judge Pryor’s rule is thus swallowed by the exception. If such a circumstance presented in court, the plaintiff would lose, but should the pinky ring raise the pinky? We don’t suggest every case will succeed, but people who cover and avoid gay “social identity” for fear of discrimination is precisely the reason we seek relief.
28

“they.” Only Melissa Zarda is a “she.” But Mortara had to poke at the pronouns to underscore that Don is dead, underscoring that the real plaintiff is not alive, despite our attempt to tell the story of a man who was denied his livelihood because he did not conform to what a man is expected to be.
If Hively II played Scrabble with Price Waterhouse, it was terrificly played. Its holding may not apply in every situation, but to establish a statutory apartheid, segregating the LGB from theories of discrimination available to the majority is the exact opposite of liberty. While the Seventh Circuit might have played Scrabble, Mortara wants the Court to play Risk, suggesting diplomacy by citing simple dictionary definitions found in statutes inapplicable, yet attempting to win the game by conflict and conquest: using his armies to occupy every space in his writing until the players can’t see what has happened is merely a criticism of discrimination lawsuits in and of themselves, except for the most obvious: Wall off the inferences that can be made from existing jurisprudence, ignore Back, clothe yourself in the dubious logic of Williamson, the outdated holding in Evans, Mortara and AG Sessions suggest: The gays will continue to be excluded from what Title VII protects, but they can marry – at least for now. We urge every member of this Honorable Panel not to Risk engaging in this game.
29

CONCLUSION

The opposition presents this Court with an interpretation of Title VII that is

precisely the opposite of liberty among which is the guarantee of Equal Protection. As

such, the Court should remand to the dispute to the district court.

Dated:

New York, New York August 9, 2017

Dated:

New Paltz, New York August 9, 2017

30

CERTIFICATION UNDER FRAP 32(a)(7)(C)

Gregory Antollino, an attorney admitted to this Circuit and attorney for

plaintiff, hereby certifies pursuant to Federal Rule of Procedure 32(a)(7)(C) that

this brief contains 7997 words from Preliminary Statement to Conclusion as

computed by the word processing program (Microsoft Word) used to prepare the

reply brief, and the Court, Katzmann, J., granted us leave to file an oversized

brief not to exceed 8000 words on August 8, 2017. The font is Times New

Roman, a proportional font, at 14 point. The brief was scanned for viruses using

AntiVirus Thor.

Dated:

New York, New York August 9, 2017

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1 1

2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
3 --------------------------------------------X

4 DONALD ZARDA,

5

Plaintiff,

6

-against-

Index No.

7

10-CV-04334

8 ALTITUDE EXPRESS, INC., d/b/a/ SKYDIVE LONG

ISLAND, and RAY MAYNARD,

9

Defendants.

10

--------------------------------------------X

11

December 9, 2011

12

10:15 a.m.

13

4875 Sunrise Highway

Bohemia, New York

14

15

EXAMINATION BEFORE TRIAL OF DONALD ZARDA,

16 the Plaintiff herein, taken by the

17 Defendants, pursuant to Article 31 of the

18 Civil Practice Law and Rules of Testimony,

19 and Notice and order, held at the

20 above-mentioned time and place, before Karen

21 LaMendola, a Professional Court Reporter and

22 Notary Public of the State of New York.

23

24

25

South Shore Court Reporting (631)-235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 3 of 425 PageID #: 4170

2 1

2 A P P E A R A N C E S:

3

4

GREGORY ANTOLLINO, ESQ.

Attorney for Plaintiff

5

18-20 West 21 Street, Suite 802

New York, New York 10010

6

7

ZABELL & ASSOCIATES, P.C.

8

Attorneys for Defendants

4875 Sunrise Highway

9

Bohemia, New York 11716

10

BY: SAUL ZABELL, ESQ.

11

12

13

14

15

16

17

18

19

20 ALSO PRESENT: William L. Murphy
21

22

23

24

25

South Shore Court Reporting (631)-235-6218

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3 1

2

STIPULATIONS

3

4

IT IS HEREBY STIPULATED AND AGREED by and

5 between the attorneys for the respective

6 parties herein, that filing, sealing and

7 certification be and the same are hereby

8 waived.

9

IT IS FURTHER STIPULATED AND AGREED

10 that all objections, except as to the form of

11 the question shall be reserved to the time of

12 the trial.

13

IT IS FURTHER STIPULATED AND AGREED

14 that the within deposition may be signed and

15 sworn to before any officer authorized to

16 administer an oath, with the same force and

17 effect as if signed and sworn to before the

18 Court.

19

20

21

22

23

24

25

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4 1

2 D O N A L D Z A R D A, the witness

3

herein, having been first duly sworn

4

by a Notary Public in and of the

5

State of New York, was examined and

6

testified as follows:

7 EXAMINATION BY

8 MR. ZABELL:

9

Q

Would you please state your full

10 name for the record.

11

A

Donald Zarda.

12

Q

What is your current address?

13

A

P.O. Box 312, Richmond, Virginia

14 64085.

15

Q

Good morning, Mr. Zarda. How

16 are you?

17

A

Good morning. How are you?

18

Q

Good. You know my name is

19 Saul Zabell. We've met before; correct?

20

A

Correct.

21

Q

We haven't had much of a

22 conversation before, but we've met in the

23 context of this case; correct?

24

A

Correct.

25

Q

And you know me to be the

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1

D. Zarda

2 attorney who represents Altitude Express;

3 correct?

4

A

I do.

5

Q

You also know me to be the

6 attorney who represents Ray Maynard; is that

7 correct?

8

A

Yes.

9

Q

Today I am conducting this

10 deposition on behalf of Altitude Express. Do

11 you understand that?

12

A

Yes.

13

Q

You know that I'm going to be

14 asking you questions; correct?

15

A

Correct.

16

Q

You're going to be providing

17 answers to those questions; correct?

18

A

Yes.

19

Q

And you are swearing that the

20 answers that you are providing are truthful

21 and accurate?

22

A

Yes.

23

Q

Do you understand that?

24

A

To the best of my recollection;

25 yes.

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1

D. Zarda

2

Q

Do you understand that you took

3 an oath today to swear to tell the truth?

4

A

Yes.

5

Q

And you understand that if you

6 provide answers that are not truthful, you

7 are subject to charges of perjury?

8

A

Yes.

9

Q

Giving false answers in this

10 deposition today would be no different than

11 providing false testimony before a Court. Do

12 you understand that?

13

A

Yes.

14

Q

And have the ramifications of

15 that been explained to you by your Counsel?

16

A

Yes.

17

MR. ANTOLLINO: Objection.

18

Anything that you've discussed with me

19

is not going to be asked or answered.

20

MR ZABELL: I believe the answer

21

is on the record.

22

MR. ANTOLLINO: Motion to

23

strike.

24

MR. ZABELL: To the extent I

25

can, your motion is denied.

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1

D. Zarda

2

MR. ANTOLLINO: Okay.

3

Q

How are you feeling today?

4

A

Great.

5

Q

Are you currently taking any

6 medications?

7

A

None other than prescribed.

8

Q

What prescribed medications are

9 you taking?

10

MR. ANTOLLINO: Well, I'm going

11

to object on the grounds that that is

12

not relevant. I'll let you ask him

13

whether there is any medications that

14

he takes that would affect his ability

15

to testify or recall events truthfully.

16

MR. ZABELL: Counsel, what

17

you're doing now is making an improper

18

objection. If you would like, I would

19

be more than happy to provide you with

20

a copy of the Federal Rules of Civil

21

Procedure to familiarize yourself

22

before you continue.

23

I can also tell you that we will

24

allow each other to finish speaking

25

before we interrupt each other. Am I

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1

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2

clear on that?

3

MR. ANTOLLINO: Mr. --

4

MR ZABELL: Am I clear on that?

5

MR. ANTOLLINO: Mr. Zabell,

6

Mr. Zabell, you're not going to

7

denigrate or derisive me or make any

8

more accusations or criticisms about my

9

knowledge of the Federal Rules, or

10

whatever.

11

I'm trying to get through the

12

deposition. I'm not going to let you

13

ask him, generally, what medications he

14

takes, and we can mark that for a

15

ruling if you deem it necessary.

16

MR. ZABELL: No, no, we'll not

17

mark it for a ruling.

18

MR. ANTOLLINO: Okay.

19

MR. ZABELL: We will stop this

20

deposition right now, and we will call

21

the Judge if you feel it is absolutely

22

necessary.

23

MR. ANTOLLINO: I do.

24

MR. ZABELL: If you'd like, I

25

think the prudent thing is to ask me

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2

why I need to ask him those questions.

3

MR. ANTOLLINO: All right. Do

4

you want to explain why you need to ask

5

those questions?

6

MR. ZABELL: Sure.

7

MR. ANTOLLINO: Okay, go ahead.

8

MR. ZABELL: There are claims

9

for emotional damages. I have an

10

absolute right to explore what

11

medications this individual was taking,

12

A, to ensure that those medications do

13

not affect his ability to testify

14

truthfully and accurately, and, B, to

15

determine if those medications are

16

related to illnesses that have not been

17

disclosed pursuant to discovery, and if

18

any of those medications he's taking

19

can be related in any possible way to

20

emotional distress.

21

If you maintain your position,

22

and I strongly suggest that after I

23

finish explaining this to you that you

24

ask for a short break to discuss it

25

with your client, if you maintain the

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2

position that you will not allow him to

3

answer that question, then it is my

4

intention to call Judge Bianco and get

5

a ruling.

6

MR. ANTOLLINO: Why don't you

7

ask him the question that you just

8

asked me. If you ask those questions,

9

those questions would not be

10

objectionable, but to ask him,

11

generally, what medications he's on,

12

that's a violation of what I've

13

asserted in this lawsuit as medical

14

privilege. I have no problems with

15

those questions whatsoever, and if you

16

had asked those questions, I wouldn't

17

have objected, but you asked a very

18

open-ended question which could go into

19

something that is, you know, completely

20

irrelevant and medically privileged.

21

MR. ZABELL: You have my

22

position.

23

MR. ANTOLLINO: All right.

24

MR. ZABELL: Again, I strongly

25

recommend that you take a moment to

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2

speak to your client. Beyond that, I

3

will call Judge Bianco.

4

MR. ANTOLLINO: Okay. I don't

5

have any reason to speak to my client.

6

I think there's a compromise, there's a

7

compromise. I have sent the Judge the

8

medical records with my objections

9

under that case that came down in the

10

Second Circuit, okay, he hasn't ruled

11

yet. I think there is a compromise

12

here.

13

I'm allowing you to ask those

14

questions more particularly, but to ask

15

a general, open-ended question invades

16

the doctor/patient privilege in a way

17

that hasn't been waived in this

18

lawsuit, so I ask you to compromise on

19

that, and what I'd also ask you to do

20

is let's call the Judge once rather

21

than --

22

MR. ZABELL: No.

23

MR. ANTOLLINO: -- several

24

times.

25

MR. ZABELL: No.

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2

MR. ANTOLLINO: I know you like

3

to do it your way, Mr. Zabell. You

4

don't like to compromise, so let's just

5

call the Judge.

6

(Whereupon, a call was made to

7

Judge Bianco, and the following

8

colloquy was had:)

9

LAW SECRETARY: Judge Bianco's

10

chambers.

11

MR. ZABELL: Good morning. It's

12

Saul Zabell. How are you?

13

LAW SECRETARY: Good. How about

14

you?

15

MR. ZABELL: I'm well, thanks.

16

I'm calling from a deposition

17

with my adversary, Gregory Antollino,

18

in the matter of Zarda against Altitude

19

Express. Do you want the CV Number?

20

LAW SECRETARY: Yes, please.

21

MR. ZABELL: It's 10-04334.

22

We are about four questions into

23

the deposition, and my adversary has

24

objected and advised the deponent not

25

to answer a question.

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2

LAW SECRETARY: Hold on one

3

second, please.

4

Let me talk to the clerk that's

5

assigned to this case; okay?

6

MR. ZABELL: Thank you.

7

MS. MAXWELL: Hi, this is

8

Ms. Maxwell.

9

MR. ZABELL: Hi. Saul Zabell,

10

and I'm here with my adversary,

11

Gregory Antollino. We're at a

12

deposition, and I'm deposing the

13

Plaintiff, Donald Zarda.

14

As part of my introductory group

15

of questions, I asked him if he's

16

currently taking only prescription

17

medications. He said, only

18

prescription medications, and I asked

19

him to identify them. Counsel gave a

20

speaking objection and advised his

21

client not to answer in what I believe

22

to be a contradiction of the Federal

23

Rules of Civil Procedure, and

24

apparently, I need a ruling on this

25

issue.

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2

MS. MAXWELL: As I recall, there

3

were issues with medical records on

4

this case; correct?

5

MR. ANTOLLINO: Yes.

6

MR. ZABELL: Yes, Counsel

7

refused to provide them and provided

8

them to His Honor for an in camera

9

inspection.

10

MS. MAXWELL: Okay. I

11

understand that you guys are not that

12

far into the deposition; is that right?

13

MR. ZABELL: About three

14

questions.

15

MS. MAXWELL: Would it be

16

possible for you guys to take maybe a

17

ten-minute break while I try to get the

18

Judge's attention?

19

MR. ZABELL: Absolutely.

20

MR. ANTOLLINO: If I could just

21

say something.

22

MS. MAXWELL: Sure.

23

MR. ANTOLLINO: I objected to

24

the question based entirely on the fact

25

that I have made, essentially, a

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2

protective order for this type of

3

information. Furthermore, I allowed

4

Mr. Zabell to ask more particularized

5

questions. He explained the reason why

6

he wanted to ask the question. He

7

asked three questions that I thought

8

were reasonable, and then I offered him

9

the opportunity to ask those questions

10

and he refused.

11

I also asked him if we could

12

continue the deposition and go to the

13

Judge once towards the middle of the

14

day because I bet we're going to have

15

more disputes later on, but he refused

16

to do that, as well.

17

Furthermore, since he's insisted

18

on calling the Judge, I want to explain

19

to the Judge that I want Mr. Zabell to

20

be admonished because he has

21

continually been snide, condescending,

22

and rude to me. He has insulted my

23

attire. He has insulted me in front of

24

witnesses. He has insulted the way

25

that I deal with my client. He offered

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2

me, on the record, a copy of the

3

Federal Rules so I could familiarize

4

myself with them. I'm not going to

5

take any more of this snide,

6

condescending behavior, and I want the

7

Judge to admonish him to not do that

8

anymore.

9

MS. MAXWELL: Well, it sounds

10

like there is a lot going on here, so

11

it may be a little bit longer than ten

12

minutes, so what I would suggest is

13

that you guys take a break. Give me a

14

number where I can reach you.

15

MR. ZABELL: Sure. You can

16

reach my office. It's (631) 589-7242,

17

and I can say that everything that has

18

transpired today is on the record, so

19

we have a transcript, including what

20

we're discussing right now, as well.

21

MS. MAXWELL: All right. We'll

22

be in touch.

23

MR. ZABELL: Thank you.

24

MR. ANTOLLINO: Thank you.

25

MS. MAXWELL: Goodbye.

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2

MR. ZABELL: Goodbye.

3

Let's take a short break.

4

(Whereupon, a recess was taken

5

from 10:26 a.m. to 10:55 a.m.)

6

(Whereupon, Judge Bianco's

7

chambers called and the following

8

colloquy was had:)

9

MR. ZABELL: Good morning, Saul

10

Zabell here.

11

MS. MAXWELL: I spoke to the

12

Judge, and he asked me to let you know

13

that given that he has not ruled on the

14

medical issue, there should be no

15

medical questions, other than whether

16

the witness is taking any medications

17

that would affect his ability to

18

remember, and the Judge warns both

19

Counsel to be civilized, and also that

20

he will be reviewing the transcript.

21

MR. ZABELL: Very well. I'll

22

ensure that at the conclusion of the

23

transcript, as soon as I receive a

24

copy, to send it on to His Honor.

25

MS. MAXWELL: Okay.

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2

MR. ZABELL: Thank you kindly.

3

MS. MAXWELL: Thank you.

4

MR. ZABELL: We hope to not have

5

to bother you again.

6

MS. MAXWELL: Okay.

7

MR. ZABELL: Have a good day.

8

MS. MAXWELL: Have a good day.

9

MR. ZABELL: You, as well.

10

MS. MAXWELL: Thank you.

11

(Whereupon, the call was

12

concluded.)

13

MR. ANTOLLINO: I would like you

14

to read back to my client what the

15

Judge ruled.

16

(Whereupon, the requested

17

portion of the record was read by the

18

court reporter.)

19

Q

Mr. Zarda?

20

A

Yes, sir.

21

Q

You just provided testimony that

22 you are currently taking prescription

23 medications; is that correct?

24

A

Yes.

25

Q

How many prescriptions --

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2

MR. ANTOLLINO: No, no, no, no,

3

come on. No, no, no. You heard what

4

the Judge said.

5

Q

How many are you taking?

6

MR. ANTOLLINO: Don't answer

7

that question. Don't answer that

8

question, Don.

9

Q

Are you familiar with the

10 prescription medications that you are taking?

11

A

I have some familiarity. I do

12 not --

13

MR. ANTOLLINO: Just answer the

14

question.

15

A

-- carry the list with me, so I

16 don't have them all in my head.

17

MR. ANTOLLINO: Answer just the

18

question.

19

Q

Are you aware of any of the side

20 effects that are listed for each prescription

21 medication that you're taking?

22

MR. ANTOLLINO: Don't answer the

23

question.

24

Q

Do you know if any of the side

25 effects for the prescription medications that

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2 you're taking impact your ability to

3 remember?

4

A

I do not believe that they do.

5

Q

Well, do you know from reading

6 the side effects from each medication that

7 they do not affect your memory?

8

A

It's been a long time since I've

9 read the side effect information that you get

10 with the medication, so I can't recall at

11 this time.

12

Q

So as you're sitting here today,

13 you don't know if any of the side effects of

14 the medications that you're taking would

15 affect your memory; is that correct?

16

A

I don't believe they would.

17

Q

The question that I asked you

18 is: As you're sitting here today, you don't

19 know if any of the side effects of the

20 medications you're taking affect your memory;

21 is that correct?

22

A

I can't say that I have specific

23 knowledge about the medications as I sit

24 here. I'm not a doctor or pharmacist.

25

Q

Do you have a memory?

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2

A

Yes, we all have memories.

3

Q

How would you characterize your

4 memory?

5

A

Good.

6

Q

Why would you characterize your

7 memory as good?

8

A

My sister says I have a very

9 good memory, and I remember things very well

10 from the past. She reminds me of that all

11 the time, and I think I have a good memory.

12

Q

So you have a good memory

13 because you think you have a good memory and

14 because your sister reminds you that you have

15 a good memory --

16

MR. ANTOLLINO: Objection to

17

form.

18

Q

-- is that correct?

19

A

She tells me I have a good

20 memory, both of them. My friends tell me I

21 remember things quite well from the past; fun

22 events and things we have done together, and

23 I remember things well.

24

Q

Have you always had a good

25 memory?

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2

A

As far as I know.

3

Q

As far as you remember?

4

(Whereupon, the witness's

5

cellphone began ringing and the

6

following colloquy was had:)

7

MR. ZABELL: Let the record

8

reflect that the deponent's cellphone

9

is ringing, and I'm just going to ask

10

that it be put on vibrate, please.

11

THE WITNESS: (Witness

12

complies.) Sorry. Okay, I got it.

13

All right. There we go.

14

Q

Everything all right?

15

A

Yes.

16

Q

Getting back to the procedure of

17 the deposition.

18

I'm going to be asking you

19 questions; do you understand that?

20

A

Right, yes.

21

Q

You are required to give verbal,

22 word responses to the questions I ask you; do

23 you understand that?

24

A

Yes.

25

Q

I say verbal, word responses

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1

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2 because sometimes in depositions, people will

3 grunt to signify a yes or a no, and it's

4 difficult for the court reporter to take that

5 down.

6

Do you understand what I'm

7 saying?

8

A

Yes.

9

Q

If you give a verbal response

10 that is not a word, we're going to prompt you

11 to give a word response; do you understand

12 that?

13

A

Yes.

14

Q

Have you ever been deposed

15 before?

16

A

No.

17

Q

Do you know what a deposition

18 is?

19

A

Yes.

20

Q

Have you prepared for this

21 deposition in any way?

22

A

Yes.

23

Q

How have you prepared for this

24 deposition?

25

A

Well, I discussed how a

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2 deposition would be conducted.

3

Q

Okay. I just want to caution

4 you now, as I'm sure your attorney is going

5 to want to caution you, you can tell me when

6 you met with your attorney, how long you met

7 with your attorney, and where you met with

8 your attorney. You cannot discuss with me,

9 or you should not discuss, you can if you'd

10 like, what was said between you and your

11 attorney.

12

Do you understand that?

13

A

Okay.

14

Q

That is your right to keep

15 private between your attorney and yourself.

16 If you choose to waive that right, you may do

17 so.

18

Do you understand that?

19

A

Yes.

20

Q

When did you meet with your

21 attorney in preparation for this deposition?

22

A

We've met a few times, but

23 coming up here for this trip, prior to this

24 deposition.

25

Q

When was the last time you met

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2 with your attorney to prepare for this

3 deposition?

4

A

When we talked about it

5 yesterday.

6

Q

For how long did you talk about

7 it yesterday?

8

A

We talked about it on and off,

9 here and there. There wasn't one specific

10 sitting. There wasn't one specific session

11 just about the deposition.

12

Q

Did you review any documents in

13 preparation for this deposition?

14

A

I reviewed the interrogatories

15 that I submitted to you, I belive, and the

16 admissions.

17

THE WITNESS: Can I turn this

18

(indicating) off because that was an

19

alarm?

20

MR. ZABELL: Yes, you may

21

absolutely turn your phone off.

22

THE WITNESS: Thank you.

23

MR. ANTOLLINO: Don, just do it.

24

THE WITNESS: I'm doing it.

25

MR. ZABELL: He's fine. He's

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2

doing fine. There's no need to caution

3

or yell at him.

4

Q

Okay, sir. Are you all set?

5

A

Yes.

6

Q

When you were explaining to me

7 the documents that you reviewed, you pointed

8 to a folder in front of you; correct?

9

A

Yes.

10

Q

Are those the documents that you

11 reviewed?

12

A

They are.

13

Q

May I see them?

14

A

Yes. (Handing.)

15

Q

I see some notes. Did you

16 review those in preparation for this

17 deposition?

18

A

No, I didn't. They're just

19 sitting in the folder.

20

Q

What we're going to do is, we're

21 going to take copies of these documents and

22 introduce them as exhibits, and this way I

23 can give you your originals back; okay?

24

A

Okay.

25

(Four-page document consisting

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2

of a copy of a Supplemental Response to

3

Requests for Admissions was marked as

4

Defendants' Exhibit A, for

5

identification, as of this date.)

6

(Thirteen-page document

7

consisting of a copy of Amended

8

Response to Demand for Interrogatories

9

was marked as Defendants' Exhibit B,

10

for identification, as of this date.)

11

Q

We're going to call Supplemental

12 Response to Requests for Admissions as

13 Defendants' Exhibit A, and that is a one,

14 two, three, four-page document, and then we

15 have Amended Response to Demand for

16 Interrogatories, which we've identified as

17 Defendants' Exhibit B. That is a one, two,

18 three, four, five, six, seven, eight, nine,

19 ten, eleven, twelve, thirteen-page document;

20 is it not?

21

A

(No verbal response.)

22

MR. ANTOLLINO: Don?

23

THE WITNESS: Yes.

24

(Whereupon, Mr. Antollino took

25

witness's phone off conference table.)

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2

Q

Is everything all right?

3

A

Yes.

4

Q

Do you want a moment to speak to

5 your attorney about him taking your phone

6 away?

7

A

I do, yes.

8

Q

While you talk to your attorney,

9 we're just going to make copies.

10

A

That's perfect. That's perfect

11 timing.

12

(Whereupon, a recess was taken

13

from 11:05 a.m. to 11:10 a.m.)

14

MR. ZABELL: You guys had your

15

moment?

16

MR. ANTOLLINO: We're good.

17

MR. ZABELL: Everything is all

18

right?

19

MR. ANTOLLINO: Yes.

20

Q

You have in front of you a

21 document that you reviewed in preparation for

22 today's deposition; is that correct?

23

A

I believe they are.

24

Q

Are those the only documents

25 that you reviewed in preparation for today's

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2 deposition?

3

A

They are.

4

Q

Yesterday you were at a

5 deposition; were you not?

6

A

I was.

7

Q

Whose deposition was that?

8

A

That was for Rich Winstock.

9

Q

Is Mr. Winstock someone you

10 would characterize as a friend of yours?

11

A

Yes.

12

Q

He was also a colleague;

13 correct?

14

A

Yes.

15

Q

Was he a supervisor, as well?

16

A

Yes.

17

Q

Where was he a supervisor?

18

A

At Skydive Long Island.

19

Q

Do you currently maintain a

20 friendly relationship with him?

21

A

I would say so.

22

Q

And you had an opportunity to

23 hear Mr. Winstock testify yesterday; did you

24 not?

25

A

I did.

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2

Q

Do you think Mr. Winstock lied

3 at all during his deposition?

4

A

I have no way to be able to

5 access that. That's only something

6 Mr. Winstock could answer.

7

Q

Well, as you were sitting next

8 to Mr. Winstock during his deposition, do you

9 think he was wrong about anything he

10 testified about?

11

MR. ANTOLLINO: Objection to

12

form.

13

Q

You may answer.

14

A

I can't characterize whether

15 Mr. Winstock was lying or whether -- I don't

16 know what facts that he had, so I was

17 learning what facts that he had at the same

18 time that you were and that everybody was in

19 the room, so that's the first time I was able

20 to hear anything that he's had to say about

21 it, so there is no way for me to really be

22 able to judge that.

23

I think he has maybe some

24 different views about the way things and

25 procedures might be done for doing our job,

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2 perhaps, but I can't say whether he was lying

3 about something or not.

4

Q

Are you referring to the grading

5 of the 97 out of 100 that he gave you on your

6 jump?

7

A

That would be one item.

8

Q

Did that bother you?

9

A

It didn't bother me at all.

10

Q

Because if I relayed to you that

11 Mr. Winstock, after the deposition, relayed

12 to me that a 97 out of 100 is pretty damn

13 good, would that surprise you?

14

A

It wouldn't make any difference

15 either way. We're both highly experienced

16 instructors who've been doing this a really

17 long time. I think we both hold each other

18 in the same regard.

19

Q

Do you find that Mr. Winstock is

20 qualified to, essentially, grade your jumps?

21

A

Yes, he is.

22

Q

In fact, at Long Island Skydive,

23 he was the most qualified person to grade

24 your dives; is that correct?

25

A

Well, as he defined what most

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2 qualified and senior is and was, he's one of

3 the higher qualified people there. He's an

4 examiner, an evaluator for the manufacturers

5 that give the licenses to us for the gear

6 that we use, so I would say a decent,

7 qualified individual to that.

8

Q

Other than the 97 out of a 100

9 that he gave you on the jump, did you

10 disagree with anything he said yesterday?

11

MR. ANTOLLINO: Objection to

12

form.

13

A

I would have to be able to go

14 over the transcript of everything he said, so

15 I can't, as a blanket statement, say that I

16 don't disagree with anything he said because

17 he said a lot of things over the course of

18 five hours.

19

As far as his characterization

20 of that one jump, a 97 out of a 100, I think

21 the issue that we were discussing was handle

22 checks that are performed when the tandem

23 instructor leaves the aircraft. I just don't

24 think that he was able to see from the

25 vantage point of that camera person that I

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2 had actually, in fact, done the required

3 handle checks at the appropriate time, so

4 that was the only reason that he gave that

5 assessment.

6

Q

I think he'd probably agree with

7 you on that, and, in fact, the videotape of

8 that specific jump that he graded you on

9 where you stuck the landing, and he commented

10 that you stuck the landing perfectly, there

11 were parts of that full jump that you

12 couldn't see; correct?

13

A

Yes, that's true.

14

Q

It wasn't videotaped; correct?

15

A

Well, all the jump is videotaped

16 from the time you leave the plane until the

17 time that you land. It's just that sometimes

18 there's separation in free fall from the time

19 you leave the aircraft, or the cameraman is

20 not close enough to really be able to see

21 some things.

22

Q

Okay.

23

A

Then it also depends on the

24 camera person. Each individual camera person

25 does things a little differently. Some of

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2 them may record all of the footage. Some of

3 them may not, just to save space on their

4 cards or on their tapes, and then they edit

5 it later.

6

Q

From your memory from yesterday,

7 was there anything that sticks out in your

8 mind that you disagree with that Mr. Winstock

9 testified about?

10

MR. ANTOLLINO: Objection to

11

form.

12

Q

You may disregard the objection

13 and provide an answer.

14

A

There were some things. I would

15 have to reflect for a moment.

16

Q

Please do.

17

A

Yeah, there were some things.

18 Starting at the beginning. When we discussed

19 the matter, Mr. Winstock and I, about what

20 had happened with my employment situation,

21 where that actually took place versus where

22 Mr. Winstock said it took place and some of

23 the details about that. That's one thing.

24

Q

Where did that discussion take

25 place?

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2

A

Where did Mr. Winstock and I

3 talk about it?

4

Q

Yes.

5

A

We talked about it in the

6 drop zone classroom, specifically.

7

Q

When did you talk about it?

8

A

It was, approximately, five

9 minutes after Mr. Maynard had suspended me.

10

Q

What did you discuss?

11

A

I asked Mr. Winstock outside of

12 the classroom on the way into the classroom,

13 it was dark. He was talking to another

14 instructor. I think that was where he was

15 mentioning that we had discussed it maybe

16 because he doesn't remember it as clearly,

17 you know, it being a year-and-a-half later,

18 if we could discuss the matter, and he said

19 sure, and then we moved over to the left

20 where the drop zone classroom is, and it was

21 a private area, and we went into there, and

22 we discussed it.

23

Q

What exactly was discussed?

24

A

Everything that Ray had just

25 told me in the video briefing room that the

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2 passengers sit in, which is also an extension

3 of his office. His office is next door to

4 the video room, and he often holds meetings

5 in that room, as well, when it's not being

6 used for video briefing, and that is where

7 Mr. Maynard and I had the suspension meeting.

8

Q

What was discussed at that

9 suspension meeting?

10

A

What was discussed was he was

11 asking me questions about a jump that took

12 place on June 18, 2010.

13

Q

What questions?

14

A

Well, there were a lot of the

15 questions. He was asking me --

16

Q

I want you to take your time,

17 and relate to me all the questions that you

18 recall.

19

A

He was asking me if I remembered

20 a jump with a Miss Rosanna. I don't

21 recall -- I don't think he provided the last

22 name at that time, and he asked me if I

23 remembered the jump I did on that day on

24 Friday, which was June 18, and I told him

25 that I did several jumps on June 18, so if I

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2 look back at the records, I did, I think, ten

3 jumps that day. So, no, I didn't remember a

4 specific jump at that time that he was

5 referring to, so it started with that.

6

Q

Continue.

7

A

Okay. And so after telling him

8 that, he asked me if I remembered the jump.

9 He said I took a girl named Rosanna, and I

10 said okay, and he asked me if I remembered

11 anything about it, and I said no, I did

12 several jumps. This was on a Monday, so this

13 was about three days later after a long

14 weekend of jumping. It was a routine land.

15

At that time, I didn't remember

16 anything specific about that jump, so then he

17 proceeded to tell me what he knew about the

18 jump, and he told me that there were some

19 customers that came out and jumped, and it

20 was a boyfriend and a girlfriend, and that I

21 had taken the girl, and they had called and

22 made a complaint.

23

Q

Continue.

24

A

I said okay, and so he was going

25 to ask me questions about what the

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2 complaint -- or about the complaint that was

3 made, and I didn't have any knowledge about

4 anything, because there was nothing out of

5 the ordinary that took place that I could

6 recall at that time.

7

Q

What questions did he ask you?

8

A

He asked me if anything about my

9 sexual orientation came up or anything about

10 being gay came up, and I said I don't know.

11

Q

Continue.

12

A

Okay. I remember telling him

13 that that comes up all the time around here,

14 because it was often joked about at the drop

15 zone all the time by staff. It was even by

16 some other customers which are experienced

17 skydivers that were mixed in with the jump

18 operation while the jump operation is going

19 on, and so I said that I don't know how it

20 came up or who brought it up at that time.

21

Q

Did you know that it was brought

22 up?

23

A

I only knew that because he said

24 it was brought up, Ray Maynard said that.

25

Q

Okay, continue.

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2

A

So what am I continuing on

3 again?

4

Q

You were telling me all of the

5 questions that Ray Maynard asked you when he

6 was investigating this customer complaint.

7

MR. ANTOLLINO: Objection to the

8

characterization.

9

Q

You may disregard the objection

10 and provide an answer.

11

A

I think he was -- I don't think

12 he was investigating what I knew about it.

13

Q

You don't think he was, or he

14 was?

15

A

No. I said I think he was just

16 investigating what I knew about it at that

17 point.

18

Q

What other questions did he ask

19 you?

20

A

He had asked me, we already

21 covered it, if I remembered anything about

22 the jump, and I said no. Then he went on to

23 tell me what the complaint was, and so -- do

24 you want me to tell you what that was?

25

Q

Please.

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2

A

He said the subject of my sexual

3 orientation had come up in front of the

4 customers and that they were offended by it,

5 and he was forced to give them all their

6 money back, and I was off for a week, and he

7 was going to take it out of my paycheck, the

8 full price for two tandem jumps with two

9 video, which he later did take that out of my

10 check, and he was very angry.

11

Q

Did he say anything else?

12

A

I'm sure he did, if you just

13 give me minute to recall that. I was in a

14 bit of -- I was shocked at the time, so --

15

MR. ANTOLLINO: Just answer the

16

question.

17

A

I said that you can't be

18 serious. I might have said something like

19 that. I do remember mentioning to him

20 something about my sexual orientation coming

21 up on the drop zone so frequently, and I

22 can't say whether I brought it up or not. I

23 said, you know, Ray, people bring that up

24 around here all the time, and if you don't

25 want that to come up, I think you should have

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2 a staff meeting and talk about it with the

3 other staff. And he was very angry, and he

4 said, there will be a staff meeting, all

5 right. He shouted that because he was very

6 angry, and I don't know if he was angry at me

7 or the situation, but that's what he said,

8 and I think he was saying that in reference

9 to while I was gone, having a staff meeting,

10 so that was my response to the issue about me

11 being gay coming up, so I was pretty

12 surprised, and I didn't know how to respond

13 to that.

14

At the very beginning of that

15 entire suspension conversation, for the first

16 few seconds of it, I actually thought it was

17 a gag, they were messing with me. I couldn't

18 believe this could even be real, so I

19 actually thought it was a joke, but it became

20 very clear, very soon that Ray wasn't joking.

21

Q

Was that all that was discussed

22 with you --

23

A

No.

24

Q

-- at that meeting?

25

A

No, it was not.

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2

Q

Please continue.

3

A

After we got through the part

4 where I said that you're going to have to

5 have a staff meeting, and he shouted what I

6 just told you, there'd be a staff meeting,

7 all right, I said, Ray, there must be video

8 of the jumps because you just said you're

9 going to take the full price of two tandems

10 and two videos out of my paycheck.

11

He was, you know -- I don't

12 know, and he was flustered and angry, and I

13 said, well, if you're going to charge me for

14 two videos, there must be video. Can I see

15 the video of the jumps? And he said, no,

16 it's irrelevant. And I paused for a moment,

17 and I said, Ray, I think it's relevant

18 because you're taking action against me right

19 now about something that you said happened on

20 a jump, and it sounds to me like there's

21 video of the jump, in fact, both jumps, and I

22 would like to take a look at it, and I think

23 I'm entitled to take a look at it, and he

24 said no.

25

I said, well, can't we just go

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2 back to the manifest records since it was

3 just on Friday and look at the records and

4 see who the cameramen were and then go to

5 them and see if we could just look at their

6 footage? And he, again, denied me being able

7 to look at the video. That was the end of

8 the discussion about the video. He wouldn't

9 let me see it, so I said, is that it? And he

10 said, no, there's something else. And I

11 said, what, and he said, she said that you

12 touched her in a way that made her feel

13 uncomfortable. So I said, really, and I

14 said, Ray, did you just tell me that I took

15 the girl or the guy in this, and he said, you

16 took the girl.

17

I said, okay, I said, so what

18 you're telling me is that me, the gay guy

19 that they complained about and they're

20 offended by, touched the girl

21 inappropriately; that's what you're going

22 with? And he said, that's right, and then he

23 was headed towards the door, and he was mad,

24 and I said, where, Ray, where, as in I was

25 wanting him to define to me where on the girl

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2 that I had touched her inappropriately, and

3 he said, flustered, like, it was at the hips.

4 I said, ah, okay, and then Ray stormed out of

5 the office, and I was left sitting in there

6 for a minute stunned, and then I sat there

7 for just -- I don't know exactly how long I

8 sat there, but Ray had left, it was dark, he

9 went out of the room, and he went out of the

10 building.

11

I got my composure. It took me

12 a few moments. Then I went out of the room,

13 and when I went out of the room and out of

14 the building, it was dark outside. That was

15 when Rich Winstock was having a conversation

16 with another instructor over to the left, and

17 that's when I said, Rich, I got to see you

18 for a second right now, and he said, okay,

19 just a minute, and I said, it's important;

20 now.

21

I started to get really upset

22 because this was just all hitting me at that

23 moment, what had just happened, it was pretty

24 amazing, if I have to say, and I was in

25 disbelief at what all had just transpired,

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2 and I'm just getting pretty angry. My anger

3 was building and I was getting really upset.

4 Rich saw that and that's when he pulled me

5 into the classroom, and that's when we began

6 discussing it.

7

Q

What started then, this whole

8 line of testimony, was that you believed that

9 Rich testified that this discussion happened

10 in a different location; is that correct?

11

A

It sounded to me like yesterday,

12 you know, that this is probably not as

13 important to him. This whole case was just

14 another day at work for him. It sounded like

15 he hasn't really discussed this much, or if

16 at all during this time, and maybe he just

17 doesn't remember the specifics as well, since

18 he's not so closely involved as to where we

19 had the discussion.

20

That's what I believed from what

21 Rich said yesterday, and why there might be a

22 little bit of difference.

23

Q

Was there anything else about

24 Rich's testimony that you believe was

25 inaccurate?

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2

MR. ANTOLLINO: Objection.

3

Q

You may disregard the objection

4 and provide an answer.

5

MR. ANTOLLINO: You may

6

disregard all my objections, unless I

7

put my hand out and tell you not to

8

answer.

9

THE WITNESS: Got it.

10

A

As we go through this

11 conversation and I try to remember the five

12 hours or three hours or so yesterday, I might

13 remember some more things that come up

14 because this is relevant, so I'm just going

15 to try to go chronologically down what was

16 discussed yesterday.

17

There are some things. I've

18 known Rich for quite a long time. I think he

19 had -- some of the facts he may have

20 remembered wrong about how long we've known

21 each other, where we met, his knowledge of me

22 being gay, some of those things because we've

23 talked about some of those things in 2009,

24 2010, in social settings after work, so, you

25 know, he has more knowledge about some of

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2 that stuff than I think he let on yesterday

3 or what he was able to recall yesterday.

4

Q

Okay, continue.

5

A

For instance, when he was asked

6 if the subject of my sexuality came up during

7 work and if he had heard it or knew anything

8 about it, I think that was inaccurate.

9

Q

What was his answer, and what

10 about that answer do you believe was

11 inaccurate?

12

MR. ANTOLLINO: Objection.

13

A

I believe he said something more

14 close to the fact that it didn't come up that

15 frequently or around him or he didn't

16 remember specific examples, so that's what

17 was inaccurate. I think, if you recall, when

18 he brought up a couple of times about the

19 jokes, you know, there were so many jokes

20 that he couldn't come up with one right then,

21 do you remember that part?

22

Q

I do.

23

A

It's like that. It's when

24 something happens so frequently, you almost

25 can't remember a specific instance of it at

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2 that moment. It was like that because it was

3 so routine and so ordinary. It came up all

4 the time that it was just like any other

5 thing that comes up, so I think that that was

6 why he probably might have answered that way.

7

It's not one of those things

8 that somebody, I think, is going to make the

9 highlight of their day of things that they

10 remember about, the joke about Don being gay;

11 it's was just another thing, so that's why I

12 don't think he remembered. Probably if we

13 were able to go back and think about specific

14 jokes at specific times, he'd be like, oh,

15 yeah, I remember that.

16

Maybe then, but there were

17 numerous times when it came up. It came up

18 almost every day, if not every day by various

19 people at various times mixed in with

20 customers and other instructors and other fun

21 jumpers that were around. It's all very

22 close. Especially in the aircraft, it's even

23 closer.

24

Q

Continue.

25

A

So that characterization or that

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2 recollection, I think he just didn't remember

3 everything, so that would be another thing.

4

Let me just think for a minute

5 what else was said.

6

The issue or the matter of the

7 nickname, Gay Don and what he said about

8 that. I don't know where exactly the

9 nickname came from, so I don't know if he

10 recalled where it came from exactly or if

11 that was something that was discussed, but

12 that was a name that I heard a lot. I heard

13 it from everybody, and I think I've heard it

14 from him, and I didn't think that he meant it

15 in any kind of derogatory way.

16

I think it just became -- if you

17 were to look at the manifest computer at the

18 drop zone, you would actually see a list of

19 nicknames on the screen when they assign you

20 who your passengers are going to be. Rich

21 Winstock's nickname is Winnie. There's

22 another gentleman that's from Texas, his name

23 was Texas, so I mean, a bunch of people had

24 nicknames that they would go by at the drop

25 zone.

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2

In fact, a few people whose

3 names I can't even remember because it was

4 always their nickname, so that sort of became

5 my nickname by a lot of the people, so

6 therefore, that would come up, that would be

7 said in front of customers, it would be said

8 in front of anybody. What does somebody

9 think about that? I don't know, so --

10

Q

Well, I think -- go ahead. I'm

11 sorry.

12

A

Rich's recollection and

13 characterization of how often Gay Don came

14 up, where it came up, and who said it, I

15 think, was a little light. That's all.

16

Q

Do you remember the interaction

17 at the deposition yesterday where I indicated

18 on the record that you were shaking your head

19 side to side?

20

A

I do remember that.

21

Q

What do you recall from that?

22

A

Well, what I'd like for you to

23 do is, for the record, to go ahead and state

24 what it is you would like to ask me about

25 that since that was yesterday, and I want to

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2 make sure we're clear about what I was

3 shaking my head about.

4

Q

Do you recall Rich testifying

5 yesterday that, yes, he knew you as Gay Don,

6 and he may have referred to you as Gay Don,

7 and he didn't know if you were offended by

8 it, and at that point, I believe you were

9 shaking your head side to side indicating

10 that you were not offended by him referring

11 to you as Gay Don?

12

Is that a fair characterization

13 of what occurred yesterday?

14

A

That's pretty close. That's

15 acceptable. What I was shaking my head about

16 was to Rich because Rich is a friend that

17 I've known for a long time. I didn't want

18 him to feel like I felt that he, as a friend

19 of mine, was offending me. That's what I

20 meant.

21

Q

When Rich referred to you as Gay

22 Don, you weren't offended by that?

23

A

I wasn't offended by that. I

24 know he meant no malice. I know he meant no

25 derogatory meaning towards me. I know that

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2 we respect each other, and so he wasn't

3 demeaning me by saying that, and I didn't

4 want him to feel like he was being put on the

5 spot with that question to determine whether

6 or not he was saying that in a demeaning

7 manner to me. I didn't want him to feel that

8 way.

9

Q

Did you ever feel that

10 Rich Winstock treated you differently because

11 of your sexuality?

12

A

Could you be more specific in

13 what you mean by treated differently?

14

Q

Treated differently in the

15 workplace then someone whose sexuality was

16 different than yours.

17

A

No, I think Rich Winstock

18 treated me like anybody else.

19

Q

You are gay; correct?

20

A

I am.

21

Q

What is your understanding of

22 the definition of the word gay?

23

A

Well, I don't have a dictionary

24 in front of me, but one that is sexually

25 attracted to members of the same sex;

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2 homosexual, or prefers.

3

Q

Well, when you say "prefers,"

4 does that mean that there are or have been

5 times of your life where you've been

6 attracted to someone of the opposite sex?

7

A

When I say that, I was trying to

8 define what gay might be in the dictionary.

9 I wasn't necessarily defining what gay is to

10 me, so if you want to ask whether I'm

11 100 percent gay, then I would say that I

12 100 percent prefer males.

13

Q

Has that always been the case?

14

A

It has always been since my

15 youngest knowledge of an understanding of

16 sexual preferences took place whenever that

17 was back in, you know, when you're a child.

18 Whenever that cognitive or that part of

19 development in your brain takes place, it's

20 been that way since that point.

21

Q

Have you, since that point, that

22 early point in your life, have you always

23 expressed to others your preference for

24 same-sex relationships?

25

A

No, I have not.

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2

Q

Did there come a point in time

3 where you, for lack of a better term,

4 "came out" about your sexuality?

5

A

Yes, there was.

6

Q

When was that?

7

A

There was a transitory phase.

8 There wasn't just one day where I opened the

9 door and said, I'm gay, so that transitory

10 phase began in around 1999 into 2000, and

11 kind of through the course of that year, it

12 came out.

13

Q

When were you born?

14

A

I was born in 1970.

15

Q

Prior to 1999 to 2000, were you

16 involved in any relationships with people of

17 the opposite sex?

18

A

I was.

19

Q

Do you characterize those

20 relationships as romantic in nature?

21

A

I would say that they were

22 friendly in nature, but as far as romantic, I

23 would have to fall short on that because I

24 really couldn't deliver in a romantic way

25 because my heart was not able to do that

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2 because I was not heterosexual, so I was just

3 in the paradoxical situation of being a

4 closeted gay person, trying to interact in a

5 heterosexual world which just doesn't work

6 sometimes, and so, no, there was no real

7 romance that could take place in those

8 involvements.

9

Q

Were any of the close

10 involvements physical relationships?

11

A

There was some physical contact;

12 yes.

13

Q

Where were you born?

14

A

I was born in Independence,

15 Missouri.

16

Q

When did you first start working

17 at Long Island Skydive?

18

A

Well, it's Skydive Long Island.

19 I want to make sure we don't get these

20 centers mixed up. Skydive Long Island is

21 Ray Maynard's drop zone while Skydiving

22 Center is down in East Moriches. That was

23 Ray's competitor.

24

Q

When did you start working at

25 Skydive Long Island?

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2

A

The first time I came to Skydive

3 Long Island was in the summer of 2001.

4

Q

I'm sorry?

5

A

It was in the summer of 2001.

6 The summer of the Trade Center.

7

Q

Is it safe to say that you

8 started working at Skydive Long Island

9 shortly after your transition period, and I'm

10 going to use the term "came out." Is that

11 offensive?

12

A

It's not offensive; no.

13

Q

So shortly after you came out in

14 the summer of 2001, you started working at

15 Skydive Long Island; is that correct?

16

A

That is correct.

17

Q

Who hired you at Skydive Long

18 Island in 2001?

19

A

Ray Maynard makes the ultimate

20 decisions in hiring people, so he hired me.

21

Q

You worked beginning in the

22 summer of 2001 through what period of time?

23

A

It was about midsummer through

24 just before the Trade Center disaster.

25

Q

How did your employment come to

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2 an end in or around September of 2001?

3

A

As I recall, from clear back a

4 decade ago, I was terminated by the general

5 manager, then Brian Petretti, who is now one

6 of Ray's part-time employees, and he does,

7 almost exclusively, video work at the drop

8 zone on weekends.

9

Q

Why were you terminated?

10

A

From the best I can recall,

11 because Ray didn't discuss the matter with

12 me, it had something to do with a customer

13 being unhappy about not being able to do

14 flips out of the airplane, or something to

15 that effect. I wouldn't do something that

16 they wanted me to do out of the aircraft.

17

Q

And you were terminated in or

18 around September of 2001; is that correct?

19

A

Yes.

20

Q

Did you think that you were

21 being discriminated against when you were

22 terminated in September of 2001?

23

A

I was confused about that, why I

24 was told that I was being terminated, because

25 Brian, at the time, didn't say a whole lot

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2 about it because he was doing it on Ray's

3 orders, and again, I'm thinking back on

4 something a decade ago that I thought was old

5 business when Ray rehired me in 2009, so I

6 haven't really thought much about that, so --

7

MR. ANTOLLINO: Just answer the

8

question.

9

Q

I think you are. You're doing

10 fine.

11

A

Repeat that part of the

12 question, please.

13

Q

My question was: On or about

14 September of 2001, did you think you were

15 being discriminated against by your

16 termination?

17

A

I'm going to have to say that I

18 don't recall what I thought at that time,

19 2001, about that matter, about being

20 discriminated against or whether I was being

21 discriminated against at that time.

22

Q

In your response, you mentioned

23 that you were rehired in 2009; is that

24 correct?

25

A

That is correct.

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2

Q

You were rehired by Skydive Long

3 Island; correct?

4

A

That is correct.

5

Q

Who rehired you?

6

A

Ray Maynard.

7

Q

Can you tell me how you came to

8 be rehired in 2009?

9

A

Can you be a little more

10 specific about -- are you asking who I talked

11 to about it?

12

Q

What I'm really asking you for

13 is a narrative. At what point did you say,

14 you know what, I'd like to start working

15 there? And explain to me how that all came

16 about.

17

A

Okay.

18

MR. ANTOLLINO: Objection. It

19

calls for a narrative.

20

Q

And you may go ahead and

21 disregard that objection and provide a

22 narrative.

23

A

It wasn't just a one, pick up

24 the phone, call Ray, and ask if I could work

25 there kind of thing. It was something that

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2 had built over the course of a few months. I

3 know a lot of the people that work at Skydive

4 Long Island for a long time. Some of those

5 people are there from 2001, like Rich and

6 Curt and a friend from New Zealand, Duncan

7 Shaw, and I had spoken to Duncan in

8 late 2008, about how things were going at

9 Skydive Long Island and that I was working

10 full-time again in the summer and about

11 coming to work there.

12

We discussed it, and he thought

13 that I should go ahead and contact Ray and

14 talk to him about it, and Duncan said that at

15 that time, that he would like to have me come

16 back to work there because he knew that I'm a

17 good instructor, he knew my qualifications,

18 and he said something to the effect of that

19 he didn't know where Ray was getting some of

20 these people, and he was frustrated and tired

21 of working with, what sounded like,

22 unqualified people that were less than up to

23 par to do the job.

24

And so he was trying to prod me

25 to go ahead and talk to Ray about coming back

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2 to work there, because I think he wanted me

3 to come back and work there. I said, okay,

4 and when I came down from the end of the

5 season in May -- excuse me -- in Maine from

6 working at Jumping Route, the season ends up

7 there just a few weeks earlier because it's

8 so far north.

9

On my way back through to head

10 to Missouri, I came out to Skydive Long

11 Island and made some fun jumps, and then I

12 also talked to Ray in person about that

13 prospect.

14

Q

And you spoke to Ray because you

15 thought, you know what, you like the people

16 here, and you wanted to work here; correct?

17

A

That is correct.

18

Q

This is all in 2009?

19

A

This is in 2008.

20

Q

Continue.

21

A

So, it wasn't an appointment or

22 anything or a specific meeting that I had set

23 up with Ray. I just picked a day that was a

24 nice day to come out, do some fun jumps,

25 socialize a little bit with some of the

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2 jumpers I knew, and talk to Ray, if he was

3 there, about it. He just mentioned -- I

4 think I spoke to Lauren, as well, going ahead

5 and sending an e-mail over the winter or

6 something when he puts his advertisement out

7 over the winter for staff to contact.

8

Q

When you spoke to Ray in 2008,

9 did the issue of your sexuality come up?

10

A

I cannot recall if we spoke

11 in 2008 at that time about my sexuality. I

12 don't know why it would come up because he

13 probably, you know, remembered it, so I don't

14 know. I can't recall if it came up

15 specifically at that time.

16

Q

Why would he remember your

17 sexuality?

18

A

Well, it was brought up in 2001.

19

Q

By whom?

20

A

By everybody. It was the same

21 scenario as what we just discussed. It was

22 out and about on the drop zone and joked

23 about.

24

Q

In 2001 when you were working at

25 Skydive Long Island, you had disclosed your

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2 sexuality to your coworkers; is that correct?

3

A

It was out. It was known. I

4 don't know if I can -- you know, we're

5 talking about ten years ago. I can't say

6 that I came in and said, I'm gay, or people

7 just figured it out, you know, or could tell

8 because I went to these locations like Fire

9 Island, you know, for the weekend. Oh, you

10 must be gay, or are you gay, you know,

11 whether somebody might have asked me. I

12 can't tell you from a decade ago exactly how

13 the knowledge of my sexuality came out in

14 2001.

15

Q

Did you tell people that you

16 went to Fire Island?

17

A

People would -- again, I don't

18 know specifics about something a decade ago,

19 you know, like if somebody came up to me and

20 asked, did you go to Fire Island? I can't

21 say for sure. People would ask generally,

22 you know, what did you do this weekend? Oh,

23 we went to the game or we jumped into

24 Neptune's or, you know, I might have said --

25 this is just conjecture. This is speculation

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2 of how it could have come up. I went to

3 Fire Island, or I went to the Pines, that

4 kind of thing.

5

Q

So when you discussed Fire

6 Island, you discussed certain communities at

7 Fire Island, not just Fire Island, in

8 general?

9

A

More than likely. If I said I

10 went to Fire Island, I probably said I went

11 to the Pines.

12

Q

And that was --

13

A

I was out. I didn't have

14 anything to hide. I wasn't afraid. I

15 wouldn't have been afraid to tell anybody

16 where I went or what I did, if asked.

17 Jumpers routinely ask each other what you did

18 this weekend or where you're going this

19 weekend or what you did; did you have fun,

20 you know, whatever.

21

Q

In 2001, you experienced a

22 certain amount of comradery with your

23 colleagues; is that correct?

24

A

There was a lot of comradery.

25

Q

That comradery lasted with some

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2 of those coworkers who actually encouraged

3 you in 2008 to speak to Ray and come back to

4 work in 2009; is that correct?

5

A

It did.

6

Q

That was Duncan --

7

A

Duncan Shaw was the primary

8 person.

9

Q

And then there was Rich Winstock?

10

A

Yeah, but not so much Rich, but

11 more Curt, Curt Kellinger, who you mentioned

12 yesterday. I've known him for a long time,

13 as well, and I'm trying to think if there is

14 anybody else that -- you know, it was mostly

15 Duncan that I kept in most contact with

16 through those years between 2001 and 2008,

17 where it was pretty quiet.

18

I was involved in other things

19 and wasn't working full-time skydiving, but I

20 still contacted and had some relationship

21 with Duncan during that time.

22

Q

Do you remember any of the other

23 coworkers that you worked with in 2001?

24

A

I do.

25

Q

Who are they?

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2

A

Well, they don't work there now.

3

Q

Who were they?

4

A

Brandon Spadero, Orin Perry --

5 gosh, off the top of my head, there was quite

6 a few.

7

Q

Just the ones you can remember.

8

A

That aren't there anymore, is

9 that what you're asking?

10

Q

That are either there currently

11 or aren't there. Anybody you remember

12 working with?

13

A

Well, those two that I

14 mentioned, I do remember very well. Brian

15 Petretti, who was the general manager at the

16 time. I remember Curt. I remember Duncan.

17 Who else? Brandon doesn't work there

18 anymore. Don doesn't work there anymore.

19 Off the top of my head, there's so many

20 people who came through there that I can't

21 remember everybody right now.

22

Q

In 2001, these were people you

23 worked with that you were looking forward to

24 working with again in 2009; is that correct?

25

A

That's right.

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2

Q

At some point before the 2009

3 season, Ray Maynard hired you; is that

4 correct?

5

A

We discussed it, if I recall, on

6 or about November 15, 2008, which would be

7 preseason 2009.

8

Q

What did you discuss with

9 Mr. Maynard?

10

A

Just that he had agreed to have

11 me come back to work there.

12

Q

Did he put any conditions on

13 you?

14

A

Not that I can specifically

15 recall. Any conditions like -- could you be

16 more specific?

17

Q

Any behavioral conditions?

18

A

Any behavioral conditions, no, I

19 don't think he said anything specific. Are

20 you referring to like, did he ask --

21

MR. ANTOLLINO: Just answer the

22

question.

23

A

I don't remember anything

24 specific.

25

Q

Did you make any behavioral

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2 representations to Mr. Maynard in order to

3 obtain your employment in November of 2008?

4

A

Behavioral representations...

5

Q

Such as, if I'm hired, I will do

6 X, or if hired, I will not do Y.

7

A

No, no, I --

8

MR. ANTOLLINO: That's the

9

answer.

10

MR. ZABELL: Counselor, please.

11

You're restricted to just objecting,

12

nothing more.

13

MR. ANTOLLINO: I just want to

14

take a minute break, just one minute.

15

Do you mind?

16

MR. ZABELL: I do mind, but

17

you're entitled to take a break.

18

MR. ANTOLLINO: I'd just like

19

one minute. That's it. Is that all

20

right?

21

MR. ZABELL: That's fine.

22

(Whereupon, a recess was taken

23

from 11:55 a.m. 11:56 to a.m.)

24

Q

You just took a break and spoke

25 with Counsel?

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2

A

We had a brief discussion, yes.

3

Q

You went back to work for

4 Skydive Long Island in 2009; is that correct?

5

A

Correct.

6

Q

How was that?

7

A

Could you be more specific?

8

Q

Sure. How was the work

9 experience in 2009 at Skydive Long Island?

10

A

Could you even be more specific?

11 Are you talking about how was the airplane

12 and the equipment, or how were the people, or

13 how was the weather? I mean, what --

14

Q

You could start with the

15 equipment, move to people, talk to weather,

16 and then we'll get to your injury.

17

A

It sounds like you want to talk

18 about my injuries, so --

19

Q

No. I want to talk about

20 everything, including your injury.

21

A

I just want to make sure --

22

Q

Let's start with the equipment.

23

A

The equipment was fine. It was

24 good equipment. I was satisfied with the

25 equipment.

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2

Q

Let's talk about Rich Winstock.

3

In 2008, did you work with Rich?

4

A

I did.

5

Q

How was Rich in 2009?

6

A

He was the same Winnie that he'd

7 always been. He was great.

8

Q

Your interactions were

9 completely appropriate?

10

A

Yes.

11

Q

Duncan Shaw, how was Duncan?

12

A

He was just like I remembered

13 him.

14

Q

Your interactions were

15 completely appropriate?

16

A

It was good.

17

Q

Appropriate?

18

A

It was -- well, what do you mean

19 by "appropriate"?

20

Q

Appropriate for a workplace.

21

A

It was -- I will say this. It

22 was appropriate for a drop zone. It was

23 normal as far as the way people act at the

24 drop zone. It was to be expected.

25

Q

Who was the other individual

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2 that you talked about? I believe he's

3 jumping in Utah now.

4

A

Oh, Curt Kellinger.

5

Q

Yes. How was Curt Kellinger in

6 2009?

7

A

Crazy as ever.

8

Q

Inappropriate crazy?

9

A

Curt has his own category. He

10 was -- inappropriate towards me, no.

11

Q

Did you enjoy working with those

12 three individuals?

13

A

Yes, yes.

14

Q

Was there anybody that you did

15 not enjoy working with in 2009?

16

A

There is personalities at all

17 drop zones. There is some people that I

18 didn't enjoy as much as others.

19

Q

Who are the people that you did

20 not enjoy?

21

A

Ben Lowe.

22

Q

Continue.

23

A

Well, let me think for just a

24 minute.

25

In general, I got along with

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2 everybody, so there were just some people

3 that required a little bit more work than

4 others to be able to get along with, and he

5 was one of those people.

6

Q

I think I understand that

7 concept.

8

A

Yes.

9

Q

Ben Lowe required more work to

10 get along with.

11

Were you able to get along with

12 him?

13

A

Yes, I was.

14

Q

Who else?

15

A

At the very beginning, Willie.

16 That's one of those nicknames. For the life

17 of me, I can't remember his full name right

18 now, but I'm sure we have a record of it

19 somewhere. I remember him very well, but

20 this is one of those situations where people

21 go by their nickname. He required a little

22 bit of extra work, as well, and by the end of

23 the season, it was good.

24

Q

So your relationship, by the end

25 of the season, was great with everyone; is

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2 that correct?

3

A

I think so.

4

Q

So much so that would you

5 characterize you enjoyed working in 2009 at

6 Skydive Long Island?

7

A

I enjoyed working in 2009 up

8 until I broke my ankle, so I didn't enjoy

9 that.

10

Q

How did you break your ankle?

11

A

It was at work, and it was on a

12 landing.

13

Q

Do you recall when that was?

14

A

The specific date?

15

Q

Yes.

16

A

Yeah, you don't forget that. It

17 was July 2, 2009 at, approximately, 2 o'clock

18 in the afternoon.

19

Q

When you broke your ankle, you

20 were casted; correct?

21

A

Eventually.

22

Q

How soon after July 2 were you

23 casted?

24

A

In a splint, in a cast, or in a

25 boot because there's -- be more specific,

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2 please.

3

Q

Which started first?

4

A

The very first thing was a

5 splint.

6

Q

When were you splinted?

7

A

That was later on that evening

8 after I had drove myself to the hospital.

9 Not sure even what the situation with my

10 ankle was at that point.

11

Q

You banged it up, you weren't

12 sure if it was broken or sprained, so they

13 splinted it for you; is that correct?

14

A

They confirmed later that

15 evening that, in fact, it was fractured

16 which, since I hadn't broken anything, other

17 than a thumb in my entire life, I thought

18 that just meant it was cracked, and I didn't

19 realize that it was, you know, that it was

20 broken, as in broke.

21

Q

How long were you told that you

22 would be out of the jumping business?

23

A

That's a good question, because

24 that answer kept changing as things with my

25 ankle changed, and there were just opinions

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2 from various people about that from six weeks

3 on up.

4

Q

How long were you --

5

A

I was being optimistic.

6

Q

Is it safe to say that July 2 landing

7 injury took you out of jumping for the

8 remainder of 2009?

9

A

It took me out of -- yeah, it

10 did.

11

Q

You didn't work at Skydive Long

12 Island after --

13

A

Let me --

14

Q

-- you have to let me finish my

15 question, sir.

16

A

Fine.

17

Q

You didn't work at Skydive Long

18 Island in 2009 after July 2; is that correct?

19

A

That is correct. The injury --

20 what I was going to say was that it took me

21 out of work jumping for the remainder of the

22 season, completely.

23

Q

You came back in 2010?

24

A

I did.

25

Q

With a vengeance?

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2

MR. ANTOLLINO: Objection to

3

form.

4

A

No.

5

Q

You came back in 2010 looking

6 forward to jump again; correct?

7

A

I did. I came back with a

8 positive, high-spirited attitude ready to go

9 to work.

10

Q

When were you cleared to begin

11 jumping in 2010?

12

A

By my doctor, I was cleared to

13 begin work jumping on -- now, this may be off

14 a couple of days -- on or around January 22

15 or 24. It was in that range right there.

16

That was -- let me continue so

17 that I make sure I get this straight.

18

Q

Please, go ahead.

19

A

That was on my doctor's initial

20 orders that I begin work jumping six months

21 following my surgery. That was six months.

22 We had been in contact on the phone, but when

23 I returned to Long Island, because I knew I

24 was coming back to work for Ray because we

25 had already established that, he still wanted

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2 to have an office visit with me for a final

3 check-up to clear me out, and that was in

4 June.

5

Q

The "he" is your doctor, or the

6 "he" is Ray that you just referred to?

7

A

My surgeon.

8

Q

Your surgeon?

9

A

Yeah, that did the work.

10

Q

Did you have the surgery done

11 here on Long Island?

12

A

It was.

13

Q

Good surgeon?

14

A

Thank goodness, yes, he was.

15

Q

When were you rehired by Skydive

16 Long Island 2010?

17

A

Well, Ray and I discussed me

18 coming back before I went back home in 2009

19 just after I started walking again. I asked

20 him about coming back to work in 2010, and he

21 said that would be fine; just get healthy,

22 and I said okay.

23

Q

You found that response to be

24 appropriate; correct?

25

A

Sure.

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2

Q

When did you start working again

3 at Skydive Long Island in 2010?

4

A

It was on or about May 15, 2010.

5 That was my report date, and I do believe

6 that was the first day I reported.

7

Q

Now, when you started working at

8 Skydive Long Island in 2001, do you know if

9 Ray Maynard was familiar with your sexual

10 orientation when he hired you?

11

A

I don't know. I can't remember

12 back that far directly if we discussed it or

13 if he knew about it via Curt or Rich or if he

14 knew about it at all. I think he knew about

15 it possibly from one of them and then if he

16 didn't know about it when he hired me, he

17 certainly didn't take long to figure it out.

18

Q

And you were rehired in 2009

19 with full knowledge of your sexuality; is

20 that correct?

21

A

Unless he forgot about it, then

22 I would say he would have know.

23

Q

Is it possible that he may have

24 forgotten about it?

25

A

It's possible.

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2

Q

Then, in 2010 when you began

3 working again, was he aware of your

4 sexuality?

5

A

I would say certainly he would

6 have to have been still aware.

7

Q

Let's talk about how you acted

8 at work in 2009.

9

A

Okay.

10

Q

How did you act?

11

MR. ANTOLLINO: Objection to

12

form.

13

A

Could you actually be a little

14 more specific? How did I act in -- just

15 break that down, please.

16

Q

In your daily mannerisms, did

17 you act just like every other employee?

18

A

I think I did.

19

Q

If we were watching a video of

20 you, just a video with no volume and we saw

21 your daily interactions, would we be able to

22 distinguish your interactions from any of

23 your coworkers?

24

A

I doubt it.

25

Q

Was that the same in 2010?

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2

A

It was.

3

Q

Your work activities throughout

4 your employment at Skydive Long Island were

5 indistinguishable from any of your coworkers;

6 is that correct?

7

A

I would say -- there's no way I

8 could say whether indistinguishable or not,

9 because I am the one that is performing the

10 work actions, and I would be viewed by a

11 third person, so it would be strictly up to

12 whoever was watching me and what they

13 thought, but I would say that I acted

14 normally just like everybody else. I didn't

15 do anything special that I can think of.

16

Q

In your perception, you acted

17 just like everybody else?

18

A

As far as I can tell.

19

Q

In 2009, you testified that you

20 got along with everybody; is that correct?

21

A

I believe, unless we were to

22 read back what I said, I think I said

23 something to that effect.

24

Q

I think what you said is that

25 Ben Lowe and maybe Willie required a little

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2 bit of extra attention, but you won them over

3 by the end of the season; is that correct?

4

A

I didn't say I won them over;

5 you just said that.

6

Q

I did just say that. That was

7 my characterization.

8

A

Well, I think the relationship

9 developed positively by the end of the

10 season. It required a little extra work, but

11 it got to a good place.

12

Q

Would you say that in 2009, you

13 had positive working relationships with all

14 of your colleagues?

15

A

I would say so, for the most

16 part.

17

Q

What about 2010, did you have

18 positive working relationships with your

19 colleagues?

20

A

There were some new characters

21 in 2010, so there's a high turnover rate for

22 seasonal employees at Skydive Long Island, so

23 there were some new people that were brought

24 into the mix, different attitudes and

25 different personalities, and most of the same

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2 people were there, but I would say that yes,

3 I did have a good experience. There were a

4 couple of personalities that needed a little

5 extra work.

6

Q

In 2010, you had a good

7 experience, but some of the personalities

8 needed extra work; is that correct?

9

A

I'd say so.

10

Q

Who were those personalities?

11

A

First, a guy named Monkey John.

12

Q

Did his mom give him that name?

13

A

I have no idea.

14

Q

I'm making a joke.

15

A

Oh, all right. He required a

16 little extra work.

17

Q

What was Monkey John's problem?

18

A

You know, it was kind of funny.

19 His problem was when I returned to my same

20 digs in the staff room, which is already

21 crowded, and I was going to take the same

22 spot that I had the previous year, he didn't

23 like it, so he made a little to-do about it,

24 and that was my first meeting with John, with

25 Monkey. His girlfriend Carmen, at the time,

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2 was in the room, and Monkey kind of actually

3 got a little bit angry and sort of went off

4 on me a little bit, and some of the other

5 staff were in the room like Sean Tierney, I

6 think Marco was in there, and they dismissed

7 and resolved it and said, don't worry, Don,

8 just put your stuff over here, and I was

9 like, okay, no problem.

10

Q

So your coworkers came to your

11 defense?

12

A

They did, and, in fact, Monkey's

13 girlfriend, Carmen, also came to my defense

14 in the room by telling Monkey that he was

15 being, quote, a dick and to stop it.

16

The thing about that is that

17 it's not a good way for me to start a new

18 relationship with a coworker on the first

19 day, but I didn't have anything to do with

20 it, so I was just present, so that's why that

21 relationship probably needed a little extra

22 attention as opposed to the other people I

23 was working with.

24

Q

Did you have any negative

25 interactions with any of your other coworkers

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2 in 2010?

3

A

No, not that I can recall.

4

Q

Just Monkey Jim?

5

A

Monkey John.

6

Q

John, Monkey John.

7

A

I think his real name is John.

8 I don't know his last name. He's the only

9 Monkey there.

10

Q

From what you've told me, Monkey

11 John was acting like, and I quote, per

12 Carmen, a dick?

13

A

Yes, that's what she said.

14

Q

But then your coworkers and

15 Carmen came to your defense; is that correct?

16

A

They did.

17

Q

That must have been a good

18 feeling; right?

19

A

None of it was a good feeling

20 because it was awkward for me because I was

21 coming to work, going back to the same spot

22 that I was in, and I've got somebody that I

23 don't know that's confronting me about that,

24 and so it's the first day, not something

25 anybody really wants to start out that way

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2 with a new relationship, so what -- you're

3 asking me if I felt good about it? I didn't

4 feel good about it.

5

Q

Well, did you appreciate your

6 coworkers coming to your defense?

7

A

I did appreciate that.

8

Q

There was some discussion

9 yesterday about weight, how much people

10 weighed as it applied to jumping and certain

11 weight restrictions. Now, I can tell you as

12 I sit across this table from you, you appear

13 to be someone who is physically fit; are you?

14

A

I am.

15

Q

Have you always been?

16

A

I have.

17

Q

You started jumping for Skydive

18 Long Island in 2001; is that correct?

19

A

I first worked there in 2001 for

20 Skydive Long Island.

21

Q

Do you recall how much you

22 weighed then?

23

A

I can't tell you, specifically,

24 but I've weighed pretty close to the same

25 weight for most of my adult life, so it was

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2 about what I weigh now. It would have been

3 between 170 and 180.

4

Q

Does your weight normally

5 fluctuate between 170 and 180?

6

A

It stays around 175 or 180.

7 Right now I think I'm actually 185 because I

8 did some mountain climbing this summer.

9

Q

Mountain climbing increases your

10 weight?

11

A

Well, it's just a form of

12 working out. I suppose I put on some extra

13 muscle.

14

Q

And you view that as a good

15 thing?

16

A

It is a good thing.

17

Q

Has anything since 2001 to now,

18 affected your weight?

19

A

Has anything?

20

Q

Yes.

21

A

No. I need you to be really

22 more specific about that.

23

Q

Anything; holidays, workout

24 routines?

25

A

Not much. I've really been in

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2 that range, I just told you, most of my adult

3 life. I've been right there. I lost a

4 little bit of weight over the broken ankle

5 because this (indicating) leg got smaller.

6 That was temporary.

7

Q

You lost weight when you broke

8 your ankle?

9

A

In this (indicating) leg.

10

Q

You see, if someone like me was

11 to break my ankle, I'm sure I would gain

12 weight.

13

A

I lost weight a little bit.

14 Probably about ten pounds, and it was

15 temporary.

16

Q

Were you able to exercise when

17 you broke your ankle?

18

A

I was. I was at the gym on

19 crutches.

20

Q

You workout frequently?

21

A

I do.

22

Q

How often do you workout?

23

A

Depending on whether I'm

24 traveling or what I'm doing. It could be

25 anywhere between three and five times a week.

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2

Q

Was that consistent since 2001

3 to now?

4

A

It's been over the last twenty

5 years. Ever since high school, so you can

6 include that timeframe.

7

Q

Has anything during that

8 timeframe interfered with your consistent

9 working out of three to five times a week?

10

A

Yes.

11

Q

What was that?

12

A

I had a back injury in 2002.

13

Q

Could you explain that to me?

14

A

It was an injury that I suffered

15 in the gym doing squats, and as a result of

16 that, I had to cut back my workout routine

17 for about six months or so.

18

Q

When you cut it back, you cut it

19 back to how many times a week?

20

A

Well, for a little bit there, I

21 don't remember exactly how long; it felt like

22 forever, but I couldn't do anything for, you

23 know, two or three weeks in a row, and I

24 wasn't supposed to be doing anything, but I

25 kind of was able to lightly do some very

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2 light weight throughout that four to six

3 months where I was really not supposed to be

4 doing anything.

5

Q

So you still worked out; you

6 just used much lighter weights?

7

A

I did some alternative

8 exercises, not weightlifting, you know, some

9 light weights, machines, stuff to keep me

10 moving and try to keep in shape. I'm not one

11 that does very good with just lying around,

12 so those kind of instructions don't work too

13 well for me.

14

Q

That was the only thing

15 from 2001 to now, 2011, that interfered with

16 your working out; is that correct?

17

A

That, and the broken ankle

18 interfered just for a little bit because,

19 obviously, I couldn't go to the gym right out

20 of surgery. I actually ran into the nurse,

21 one of the nurses that was in my surgery, at

22 the gym.

23

Q

She yelled at you for being

24 there so soon?

25

A

He.

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2

Q

"He"? He yelled at you for

3 being there so soon?

4

A

He was surprised to see me in

5 there that quickly and just told me to take

6 it easy.

7

Q

Did he scold you?

8

A

He just said to be careful, take

9 it easy, don't get too carried away.

10

Q

Did you listen to his advice?

11

A

I did listen to it. I still

12 went, but I heeded -- you know when somebody

13 tells you something like that, and you've

14 never been through what I was going through,

15 I definitely didn't want to mess anything up,

16 but I didn't want to get out of shape because

17 I sitting around on the sofa.

18

Q

Do you still suffer from the

19 effects of that back injury?

20

A

I do.

21

MR. ANTOLLINO: Objection. I

22

think we're getting into the medical

23

privilege. Would you agree?

24

MR. ZABELL: No.

25

MR. ANTOLLINO: I think that we

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2

are, so with the Judge's instruction, I

3

kindly ask you to move on to another

4

subject.

5

MR. ZABELL: Are you directing

6

him not to answer the question?

7

MR. ANTOLLINO: Yes, yes.

8

MR. ZABELL: You need to just

9

make that clear.

10

MR. ANTOLLINO: All right. I'm

11

just trying to make it smooth also.

12

THE WITNESS: Good to go.

13

Q

Do you smoke?

14

A

No.

15

Q

Have you ever smoked?

16

A

I've smoked a clove on occasion,

17 but I've never smoked a regular nicotine

18 cigarette.

19

Q

Within the last two years, have

20 you smoked clove cigarettes? Is it

21 cigarettes, or just cloves?

22

A

It's called cloves. Yeah, I

23 have.

24

Q

Why have you smoked cloves?

25

A

Social setting. Something along

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2 that line. Just smells good. Somebody had

3 one.

4

Q

Have you smoked marijuana within

5 the last two years?

6

MR. ANTOLLINO: I don't know the

7

answer to that, but I'm going to direct

8

him not to answer that question on the

9

grounds that he has a right not to

10

incriminate himself.

11

MR. ZABELL: Well, his answer is

12

either no, I haven't, or --

13

MR. ANTOLLINO: If his answer

14

were yes, then --

15

MR. ZABELL: I tell you what.

16

We can designate it as confidential and

17

that will allay any of your concerns,

18

but I have an absolute right to ask him

19

that question.

20

MR. ANTOLLINO: Let me speak to

21

him outside. I think that his Fifth

22

Amendment Right is a basis for me to

23

direct him not to answer, and that's

24

going to be my objection at this point.

25

If you'd like, I can speak to

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2

him outside. I might reconsider it,

3

and I might not.

4

MR. ZABELL: I'll tell you what.

5

Why don't I leave you alone and this

6

way you don't have to leave.

7

MR. ANTOLLINO: All right.

8

Sounds good.

9

(Whereupon, a recess was taken

10

from 12:21 p.m. to 12:28 p.m.)

11

MR. ANTOLLINO: We're still

12

discussing this issue, you and I,

13

before you ask him any questions?

14

MR. ZABELL: I don't know if

15

we're discussing anything. Would you

16

like to discuss something?

17

MR. ANTOLLINO: Yes, I would

18

like to discuss something.

19

MR. ZABELL: What would you like

20

to discuss?

21

MR. ANTOLLINO: I would like to

22

direct the witness not to answer, and I

23

am going to ask the witness not to

24

answer on the grounds that an answer

25

could violate his right against

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2

self-incrimination.

3

MR. ZABELL: Well, you can

4

certainly advise him to say that I

5

refuse to answer that question on the

6

grounds that it may incriminate myself,

7

but he has to assert that. You can't

8

assert that for him.

9

MR. ANTOLLINO: I'm not so sure

10

about that. I'm going to direct him

11

not to answer.

12

MR. ZABELL: I understand what

13

you're saying, and we're going to get

14

to the same place, but he has to say, I

15

am refusing to answer that on the

16

grounds that I may incriminate myself.

17

MR. ANTOLLINO: It's a

18

deposition. It's different. It's

19

not --

20

MR. ZABELL: He still has to say

21

it because this is his sworn testimony,

22

and it gets cited to in the record, so

23

if that's what you're advising him,

24

that's fine. I'm going to ask him if

25

he's refusing to answer the question on

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2

the grounds that the answer may

3

incriminate him.

4

MR. ANTOLLINO: Let me speak to

5

my client outside, Saul.

6

MR. ZABELL: You may do so.

7

(Whereupon, a recess was taken

8

12:28 p.m. to 12:29 p.m.)

9

MR. ANTOLLINO: I'm asserting a

10

privilege on the grounds of his Fifth

11

Amendment Right against

12

self-incrimination. You can ask him,

13

and he's going to give you an answer.

14

I don't want to go around in circles

15

with this all day long. That's the

16

on-the-record reason for not answering

17

the question. Go ahead.

18

Q

Mr. Zarda, are you refusing to

19 answer my question?

20

A

I'm not going to answer any

21 questions that my attorney has advised me not

22 to answer.

23

Q

Are you refusing to answer the

24 question on the grounds that your answer may

25 incriminate you criminally?

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2

A

(No verbal response.)

3

Q

Yes or no?

4

MR. ANTOLLINO: Objection. I've

5

instructed him not to answer the

6

question. I'm directing him not to

7

answer the question for the reason that

8

I have put on the record that he has

9

the right not to incriminate himself.

10

Let's not go around in circles on this.

11

Q

Are you refusing to answer the

12 question on the grounds that you may

13 incriminate yourself?

14

A

I can't answer the question,

15 because I'm not going to answer any questions

16 that my attorney has advised me not to

17 answer, and that is one of those questions.

18

Q

Are you familiar with the term

19 "illegal drugs"?

20

A

I've heard the term.

21

Q

What is your understanding of

22 what the drugs are that are encompassed by

23 that term?

24

MR. ANTOLLINO: Objection. You

25

can answer.

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2

A

There's a whole book full of

3 drugs that could be illegal. It can be drugs

4 that -- it can be prescription drugs that

5 don't have your name on it. That would be

6 illegal drugs. You could have too many

7 antiallergy pills in your backpack. That

8 would be illegal, so I mean, there's a whole

9 list of drugs that would be considered

10 illegal, I presume.

11

Q

Can you identify some of the

12 those drugs?

13

A

Well, I think the one you hear

14 about in the media the most would be like

15 marijuana, cocaine. Those would be a couple

16 of examples. Methamphetamine, I suppose.

17

Q

Ecstasy, is that another one?

18

A

I'm sure it would be considered

19 illegal.

20

Q

Within the last two or three

21 years, have you taken methamphetamines?

22

MR. ANTOLLINO: I'm going to

23

direct the witness not to answer the

24

question for the reason stated before.

25

Q

In the past three years, have

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2 you used cocaine?

3

MR. ANTOLLINO: I'm going to

4

direct the witness not to answer the

5

question for the reason stated before.

6

Q

Have you used ecstasy in the

7 last three years?

8

MR. ANTOLLINO: I'm going to

9

direct the witness not to answer the

10

question for the reason I stated

11

before.

12

Q

Have you used any item that has

13 altered your thought process within the last

14 three years that is not prescribed?

15

MR. ANTOLLINO: Wait. Hold on.

16

Okay, again, I'm going to direct the

17

witness not to answer the question for

18

the reason stated before.

19

Q

Do you drink alcohol?

20

A

I do on occasion.

21

Q

Do you ever drink to excess?

22

A

No, I do not.

23

Q

Have you ever drank to excess?

24

A

I have, but it was a long time

25 ago.

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2

Q

About how long ago?

3

A

I was done with that back in

4 around 2000.

5

Q

You know, when you fill out

6 certain forms for insurance, they ask you how

7 often you drink. They'll ask you if it's one

8 drink a week or two drinks a week.

9

How many drinks a week would you

10 characterize your usage as?

11

A

It just depends on where I'm at.

12 If I'm at a drop zone working and I'm hanging

13 out with a bunch of jumpers after work having

14 a couple of beers after work, or if I'm doing

15 school for a solid week and I'm doing

16 homework, I may not have any, so a per week

17 thing, I think maybe per night or something

18 might be a better way to answer the question.

19

Q

Okay, please.

20

A

I don't get drunk. I don't like

21 the feeling of being drunk, so I would stick

22 to the rule of no more than a drink an hour

23 or a beer an hour, not even that much. You

24 know, so a person might see me have a couple

25 of beers in a social setting, and that would

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2 be it.

3

Q

Has that remained consistent

4 over the last three years?

5

A

It has.

6

Q

Has anything occurred within the

7 last couple of years to change that?

8

A

No, I'm not a drinker.

9

Q

At Skydive Long Island when you

10 worked there in 2009 and 2010, was there one

11 employee there that you knew you were

12 supposed to report complaints to?

13

A

Say that one more time.

14

Q

Was there one employee at

15 Skydive Long Island in 2009 and 2010, that

16 you knew you were supposed to bring your

17 complaints to?

18

A

Are you asking if there was a

19 supervisor that if you have problems, you're

20 supposed to go to?

21

Q

Yes.

22

A

Not clearly, no. There was

23 not -- there were staff meetings in which Ray

24 held, so he would want people to bring

25 complaints to him, if you had them. There

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2 wasn't a specific chain of command that was

3 outlined to the staff or in any kind of staff

4 manual that dealt with that.

5

So Ray was the drop zone owner,

6 so if there was a problem with an employee or

7 anything, it went to Ray. Typically, if

8 there was a problem with gear, you went to

9 the rigger or Rich. If there was an issue

10 with procedures, something on a jump, like

11 that, a person would typically go to Rich and

12 talk to him about it, but it wasn't outlined,

13 specifically.

14

Q

But you knew you could go to

15 Rich with your problems; correct?

16

A

I felt like I could.

17

Q

Did you go to Rich with any

18 problems?

19

A

I did.

20

Q

What problems did you go to Rich

21 about?

22

A

I went to Rich about this

23 problem with Ray firing me.

24

Q

Did you go to Rich with any

25 other problems?

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2

A

In 2009 and 2010, are you

3 asking?

4

Q

Yes.

5

A

Let me think about that for just

6 a moment, if there was anything else.

7

No, I can't think of anything

8 specifically that there was a problem that I

9 went to Rich for. The only thing we really

10 discussed work-wise, I don't know if they

11 were problems, was just me getting back on

12 board with the training program at Skydive

13 Long Island, getting me up to date because

14 some things changed over the years.

15

It wasn't a problem. It was

16 just a matter of since he was the chief

17 instructor, working me back into the system.

18

Q

You felt comfortable with Rich;

19 correct?

20

A

I did.

21

Q

You felt you could bring any of

22 your problems to Rich's attention; correct?

23

A

I did.

24

Q

In fact, there were times when

25 you would confide about personal issues with

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2 Rich; is that correct?

3

A

Be more specific about "personal

4 issues," if you would.

5

Q

There came a point in time where

6 you suffered a personal loss?

7

A

Be more specific, please.

8

Q

I believe a pet.

9

A

Okay. Yes, there was a time

10 that that happened.

11

Q

Do you recall when that

12 occurred?

13

A

I do recall when that occurred.

14 That was June 22, 2009.

15

Q

What occurred?

16

A

My pet, my cat had a heart

17 attack in the middle of the night.

18

Q

Was your cat with you on Long

19 Island at that time?

20

A

She was.

21

Q

How did that affect you?

22

A

It was very upsetting. I think

23 anybody would be upset. It was unexpected,

24 out of the blue, in the middle of the night,

25 2 o'clock in the morning, so I was upset.

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2

Q

Did you share that with Rich?

3

A

I don't specifically remember

4 going to Rich or having a meeting or pulling

5 him aside and saying, hey, Rich, this

6 happened. I'm sure that I shared it with

7 people. I have no doubt that I shared it

8 with people.

9

Q

And you shared it with people at

10 work; correct?

11

A

I'm sure I did.

12

Q

Did there come a time where

13 people at work told you that they felt that

14 you were unable to jump as a result of the

15 grief that you were experiencing?

16

A

No.

17

Q

Did you ever feel that the grief

18 that you were experiencing was preventing you

19 from effectively doing your job?

20

A

No, it didn't. I did my job.

21 Continued on.

22

Q

Did there come a time in 2009,

23 where you were crying at work?

24

A

Where I was crying at work?

25

Q

Yes.

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2

A

I don't recall crying at work.

3 I certainly didn't -- let's see, 2009. No.

4 I didn't cry when I broke my ankle. That's

5 for sure. I don't recall. I don't recall

6 crying at work.

7

Q

Did anybody at work make fun of

8 you when you lost your cat?

9

A

Nobody made fun of me. Alex

10 Allen thought that he diminished it a little

11 bit. Maybe that's just his personality.

12 It's just a cat, and he didn't like cats, so

13 it's to be expected.

14

Q

What was your cat's name?

15

A

Little Cat.

16

Q

Is that the full name?

17

A

That was her full name,

18 Little Cat Moore Zarda.

19

Q

Little Cat --

20

A

Moore Zarda.

21

Q

Moore?

22

A

M-O-O-R-E, Zarda.

23

Q

Is Moore a family name?

24

A

It is.

25

Q

As a side note, I did have a dog

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2 that my son named Little Bear.

3

A

She was a little cat.

4

Q

My son liked the TV show Little

5 Bear.

6

Did the loss of Little Cat

7 affect you emotionally?

8

A

At the time, yes.

9

Q

Does it still affect you

10 emotionally?

11

A

I've since gotten over it. I

12 have another cat that we've added to the

13 family. I don't like the fact that she's

14 gone, but people die too. I'm used to that

15 all the time, so you get over that, and move

16 on.

17

Q

When do you believe that you've

18 moved on for this?

19

A

Well, I don't want to make

20 myself sound cold, but within two days, I had

21 gone to the cattery in New Jersey, and I

22 picked up and got a new cat, so I wouldn't

23 say I was over it the day we picked up the

24 new cat, but I felt it necessary to have

25 another cat with me.

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2

Q

You believe you started to get

3 over it two days later; is that your

4 testimony?

5

A

It began the healing process.

6 It helped having another cat, the same type

7 of cat. It helped out quite a bit, but yeah.

8

Q

When you disclosed at Skydive

9 Long Island that you had lost your cat, were

10 your coworkers supportive?

11

A

They were sympathetic and

12 empathetic. They know I'm a cat person, a

13 cat fan. They knew I had Little Cat for

14 seven years. Ray, at one time, was a cat

15 person. He even made liter boxes or cat

16 boxes. He did cat boxes at one time. He

17 knew my previous cat from 2001, and he

18 enjoyed that cat, so I think people were

19 supportive.

20

Q

Was Ray supportive?

21

A

I didn't directly tell Ray.

22 Lauren, I told Lauren, and Lauren said that

23 she told Ray just so Ray would know about it.

24

Q

Did you require any time off

25 from work as a result of that?

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2

A

I did not.

3

Q

Did you take any time off from

4 work because of that?

5

A

I did not.

6

Q

You're sure of that?

7

A

I am sure of that. There was a

8 possible two-day gap, but it was

9 weather-related, I believe. Little Cat died,

10 I believe, it was on a Tuesday. I'd have to

11 look at a calendar to verify that, and I

12 think we were back jumping again on the next

13 Thursday, so I think Wednesday was a weather

14 day because I'm pretty sure it rained all day

15 the next day, so I'd have to look back, but

16 I'm pretty sure of that. The next available

17 day to be at work jumping, I was there.

18

Q

Are you in the habit of taping

19 conversations that you have with individuals?

20

A

No, I'm not in the habit of

21 that; no.

22

Q

Have you ever taped

23 conversations that you've had with

24 individuals?

25

A

I have.

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2

Q

Under what set of circumstances

3 have you taped conversations that you've had

4 with individuals?

5

A

In my entire life, or --

6

Q

Yes, in your entire life.

7

A

You realize I'm forty-one years

8 old, so it would be difficult for me to

9 recount in this seating each and every

10 instance I've ever recorded a conversation.

11

Q

As best you can.

12

A

Well, the most recent would be,

13 you know, when Ray fired me, so that comes to

14 mind the most, because this is what I'm

15 focused on thinking about. I don't think

16 about some of the other things that I might

17 have recorded such as customer service calls

18 or calls to the bank or calls to Apple

19 computer regarding my computer, getting them

20 to fix it, or something like that, so I can't

21 recall every instance of recording a

22 conversation. It would be almost impossible.

23 It's pretty broad.

24

Q

Why would you record a telephone

25 conversation?

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2

A

Several reasons. There could be

3 legal reasons that come to mind. I did

4 record a phone call between me and Ray's

5 wife. I did record that, and again, there

6 could be legal reasons for recording a phone

7 call.

8

The best reason is just to

9 remember what was said during a phone call

10 because unless you type really fast or are a

11 court reporter or you take good notes, it's

12 just easier to record the call, and then if

13 you need to go back and listen to what was

14 said, it's right here. Sort of refresh

15 yourself, so, you know, that's the most

16 useful tool that I can think of for it.

17

Q

Where were you when you tape

18 recorded your telephone conversation with

19 Ray's wife?

20

A

Where in the world, or where in

21 the country?

22

Q

Where, geographically?

23

A

I was in the State of Missouri.

24

Q

Do you know where she was?

25

A

She was -- I don't know exactly

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2 where she was. I believe she was in

3 New York.

4

Q

Did you tell her that you were

5 taping your phone call with her?

6

A

I did not.

7

Q

So you taped it surreptitiously?

8

A

Define "surreptitiously." I

9 know what the word means to me, but --

10

Q

Well, why don't you tell me what

11 it means to you.

12

A

Well, I think what it means to

13 me is, was I taping it covertly or to be able

14 to use it against her without her approval,

15 or something to that effect. I think that's

16 what you mean.

17

Q

Well, I just mean covertly.

18

A

What do you mean by "covertly,"

19 exactly?

20

Q

What I mean exactly by that is

21 that the fact that it was being taped was not

22 disclosed to her.

23

A

Okay, then yes. It was being

24 taped. I did not disclose it to her. It was

25 for my personal use to be able to reflect

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2 back on to remember and to go over what did

3 she just tell me without me having to write

4 it all down as she's telling it to me because

5 I, obviously, could not keep up with that.

6 I'm not a court reporter. I don't type fast,

7 so to me for my own personal needs, it's no

8 different than if I was taking notes while

9 talking to her on the phone, and that was the

10 purpose.

11

Q

Do you know if you violated any

12 laws --

13

A

I checked.

14

Q

-- by doing that?

15

A

I don't believe I did. I did a

16 check with some of the statutes online to see

17 if that was legal for me to do from my state,

18 and from the research that I did online, it

19 was legal for one party to be recording the

20 conversation, so I do not believe I violated

21 any laws.

22

Q

Now, there came a time where you

23 tapped a conversation that you had with Ray;

24 is that correct?

25

A

That is also correct; yes.

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2

Q

How many conversations with Ray

3 did you tape?

4

A

That is the only conversation

5 that I can recall taping with Ray.

6

Q

Why did you tape that

7 conversation?

8

A

This was the termination. I

9 taped it because I knew that I had a week on

10 suspension. I knew that Ray had broke

11 several laws and made several rash decisions,

12 and I was speaking about the matter during

13 the week with some close friends and told

14 them what had happened to me. And they said

15 when you go back to work on Monday, you need

16 to document what is said when you go back to

17 work just in case something goes wrong, and

18 so I thought about that, and I heeded that

19 advice.

20

Q

Who were friends that you spoke

21 to?

22

A

I spoke to my partner,

23 William Moore. I spoke to another friend

24 that I've known in Massachusetts that's dealt

25 with situations complex -- complex

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2 situations.

3

Q

Who was that person?

4

A

His name is Ira Helfand,

5 H-E-L-F-A-N-D, and I spoke, obviously, with

6 my mom and sisters, of course. I'm sure I

7 spoke to -- well, I know I spoke to the owner

8 of the condo that I was leasing about it.

9 Told him -- I mean, he wanted to know why I

10 wasn't going to work, so we talked about it.

11

Q

Who is that; what is his name?

12

A

Sal, which is S-A-L. Falcone,

13 F-A-L-C-O-N-E. Sal Falcone, and they would

14 come out on, you know, periodically from

15 their condo from Westchester, so his

16 boyfriend, his name is Mike, but I can't

17 think of his last name, and they were

18 together, and Mike has his own business, and

19 I can't remember what it is, so just the fact

20 that he is a business owner in New York, we

21 talked about it some.

22

And I don't remember the details

23 of it, but they knew I was suspended, and I

24 was going back to work the following week for

25 Ray, and that I should be prepared.

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2

Q

Did you tell your partner,

3 William Moore, your friend Ira Helfand, your

4 mother, sisters, and Sal Falcone why you were

5 suspended from Skydive Long Island?

6

A

I'm sure I told them what I knew

7 at the time.

8

Q

What did you tell them?

9

MR. ANTOLLINO: Objection. Go

10

ahead.

11

A

I can't remember. I can't

12 recall each conversation I had in detail with

13 each of those individuals during that time.

14 That would be overly broad and impossible for

15 me to tell you, but I can just say I was

16 suspended and that I had spoken to those

17 people, and I told them what had happened,

18 you know.

19

Whatever it was to whatever

20 level of detail and specificity that I would

21 have told each individual, I don't know.

22 There's no way. It was a tense moment, and

23 there's no way for me to remember that.

24

Q

Did you tell them that you were

25 suspended because you were gay?

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2

A

I don't recall exactly the

3 reason that I told them. I would have told

4 them -- I most likely told them what I told

5 you about what Ray said, so you're asking me

6 to recall exactly what my conversation was

7 with five different individuals during a week

8 that I had, so I can't recall that.

9

Q

Do you believe you were

10 suspended because you're gay?

11

A

I believe that was the primary

12 reason.

13

Q

Do you know what the secondary

14 reasons were?

15

A

Well, I think there were some

16 gender issues in there, as well.

17

Q

What gender issues were those?

18

A

How I would conform to sex

19 stereotypes, how I act as a man. I think

20 that was a problem.

21

Q

Did you act like a man?

22

A

I think so.

23

Q

Did you act like a woman?

24

A

I don't think so, but other

25 people may think that. I don't know what

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2 people think.

3

Q

Did you give anybody reason to

4 think that you acted like a woman?

5

A

Who knows if they saw me throw a

6 softball? I don't know.

7

Q

Did anybody comment on how you

8 threw a softball?

9

A

I can't remember specifically

10 who and where, but people have seen me throw

11 a ball before during those times between

12 jumps when we're not jumping, we're on

13 weather hold, or whatever, and it was just

14 laughed about in the same realm as my gayness

15 being laughed about, and I just shrugged it

16 off because it does look a little funny.

17

Q

So when you throw a softball,

18 you look a little funny?

19

A

If I throw a softball, yes, it

20 looks a little funny.

21

Q

Are you saying you throw a

22 softball like a spastic man or like a woman?

23

A

I would say that if you saw me

24 throw a softball, somebody might think I was

25 gay.

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2

Q

Why?

3

A

Because of the way it looks.

4

Q

Does it look like you're

5 spastic?

6

A

No. It just looks, I mean, if

7 you've ever seen the stereotypical gay person

8 throw a ball, you know, the way it's thrown,

9 there's a certain look to it.

10

Q

Could you explain to me that

11 look?

12

A

I've never been asked to explain

13 the look. Maybe I should go out here and

14 throw the ball. It just kind of has a little

15 toss to it like I'm showing you right here

16 (indicating). It doesn't look like a

17 pitcher, a typical baseball pitcher or

18 softball pitchers, how you see straight guys

19 playing catch with the ball and the mitt. It

20 just looks different.

21

Q

So straight guys have a

22 stereotype of how they play ball?

23

A

I think you can tell the

24 difference when some gay people are throwing

25 a ball and playing ball versus some straight

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2 people; yeah, I think you can say that.

3

Q

Do you know if there are any gay

4 professional baseball players?

5

A

I don't follow professional

6 sports at all. Unfortunately, I cannot

7 answer that. I mean, I don't even know who

8 the major teams are. I get asked stuff like

9 that all the time, but I don't know.

10

Q

Do you assume that there are?

11

MR. ANTOLLINO: Don't assume.

12

Objection.

13

Q

You can assume if I asked you.

14

MR. ANTOLLINO: Objection.

15

Q

You may disregard the objection.

16

A

Statistically speaking, if

17 there's a group of ten people in a room, one

18 of us is gay, so I would have to say that

19 statistically speaking, probably so.

20

Q

Other than maybe being teased

21 about how you threw a ball, can you think of

22 any other specifics?

23

A

We're talking about specifics

24 of...

25

Q

Of how you acted, I believe, in

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2 context of differently than other men at

3 work.

4

A

Maybe some people enjoyed,

5 noted, commented on my pink hat, pink cap. I

6 had a pink ball cap. I don't know if it was

7 a ball cap or just a regular hat, but it was

8 pink, and it said rebel on it, and it was

9 bright pink, and I wore it. I wore it on

10 occasion at work. I have no hair. I would

11 wear it sometimes until about 1:00 or

12 2:00 p.m. when the sun would go behind the

13 building and I didn't need it anymore. It

14 was viewed as a feminine thing.

15

Q

Your pink hat was viewed as a

16 feminine thing?

17

A

It was.

18

Q

Who commented on it?

19

A

Everybody commented on it at

20 some point that they saw me wearing that hat.

21

Q

I'd like for you to identify for

22 me the names of the people who commented on

23 it and what they specifically said, if you

24 remember.

25

A

Rich put it best yesterday.

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2 It's so many jokes that it's almost

3 impossible to come up with one right now

4 because it was just a regular, routine thing.

5 A hat, a nice pink hat. There were various

6 comments on it. I mean, I look the way I do.

7 I don't look like a lot of gay people might

8 look. The condition that I'm in, I look more

9 athletic looking.

10

Q

Are you saying that all gay men

11 don't look athletic?

12

A

Not all gay men do, so I get

13 mistaken for being straight sometimes, and

14 here I was in a pink hat, so it kind of

15 didn't make sense to some people, or they

16 didn't know what to do with it.

17

Q

Are you saying that outwardly,

18 you believe your appearance leads people to

19 believe that you're straight?

20

A

It does oftentimes, as long as I

21 don't have any accessories on that might lead

22 people to think otherwise. People do.

23 Sometimes even when I'm out at a gay club,

24 people come up to me to ask me if I'm gay.

25 Yeah, sometimes I get mistaken for being

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2 straight just on my appearance.

3

Q

Are you saying that you are of

4 the belief that your outward appearance

5 indicates to people that you are straight?

6

A

I get told that a lot.

7

Q

Is that offensive?

8

A

I don't say that it's offensive,

9 because I can't hold somebody accountable

10 just because I might look a certain way and

11 they are mistaken about it. It surprises me

12 sometimes, and it doesn't offend me. I

13 wouldn't be offended for looking straight.

14 It's just kind of funny sometimes.

15

Q

When people at work, who you

16 can't really identify by name, would say,

17 hey, nice pink hat, were you offended by

18 that?

19

A

No, I wasn't offended.

20

Q

Did Rich --

21

MR. ANTOLLINO: Wait, wait. He

22

hadn't finished answering yet.

23

Q

-- Winstock say to you, nice

24 pink hat?

25

MR. ANTOLLINO: He had not yet

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2

finished answering the question.

3

A

Let me finish answering.

4

Q

Did Rich Winstock say to you,

5 nice pink hat?

6

A

Again, I can't specifically

7 recall specific times and moments when the

8 pink hat was discussed. It was discussed or

9 mentioned or commented on regularly. I wore

10 it regularly in the mornings, as I said, to

11 protect my head. It drew attention. People

12 saw it. People commented on it.

13

MR. ANTOLLINO: All right. Can

14

I just say something on the record?

15

MR. ZABELL: No.

16

MR. ANTOLLINO: Not the last

17

question, but the one before that, I'm

18

going to move to strike, because

19

Mr. Zabell interrupted the witness as

20

he was finishing the question. And I

21

even tried to get Mr. Zabell to allow

22

the witness to finish answering the

23

question, but he continued to ask the

24

next question which my client fully

25

answered, and I had no objection.

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2

MR. ZABELL: Counselor, pursuant

3

to the Federal Rules of Civil

4

Procedure, what you have just done is

5

called a speaking objection. You are

6

not entitled to make a speaking

7

objection. If you'd like, I will give

8

you an opportunity to review the

9

Federal Rules of Civil Procedure so you

10

may confirm the representations I have

11

made are completely accurate, and that

12

you will learn to remain silent

13

throughout the rest of deposition and

14

only object in a manner which is

15

appropriate pursuant to the Federal

16

Rules of Civil Procedure.

17

To the extent that I am

18

empowered to, I deny your request to

19

strike the question and the answer and

20

ask that you remain silent throughout

21

the rest of this deposition.

22

MR. ANTOLLINO: I will make

23

objections that are appropriate.

24

MR. ZABELL: Thank you. You

25

have been doing so.

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2

MR. ANTOLLINO: I have.

3

MR. ZABELL: That's why I'm

4

going to request that you take me up on

5

my offer to review the Federal Rules of

6

Civil Procedure.

7

MR. ANTOLLINO: You've, once

8

again, made a derisive comment,

9

Mr. Zabell. I have made an appropriate

10

objection. I have made very few

11

objections in this deposition, and I

12

will make what I feel are appropriate

13

objections.

14

Q

When in 2010, did you wear your

15 pink hat?

16

A

Be more specific, if you would,

17 please. When as in, what; days of the week,

18 time of the day?

19

Q

What days in 2010, while you

20 worked at Skydive Long Island, did you wear

21 your pink hat?

22

A

Can't remember every specific

23 time that I took a pink cap out of my bag or

24 out of my cubbyhole in the video room and put

25 it on my head, but in general, I would wear

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2 my pink hat when the sun was shining.

3 Particularly, in the morning hours from when

4 we began work until about 1:00 or 2:00 p.m.

5 when the sun would go behind the building

6 where the gear area is and I no longer needed

7 protection from the sun.

8

I would wear it while I was

9 gearing up passengers on the ground. Any

10 time I was running around on the ground and

11 the sun was shining, I would wear the hat to

12 protect my head.

13

Q

Have you ever seen a straight

14 man wear a pink hat?

15

A

I can't say that I recall a

16 specific time I've seen a straight man wear a

17 pink cap, but I don't see it often.

18

Q

But you have seen it; is that

19 what you're saying?

20

A

I can't recall. I mean, you're

21 asking me to think back over the course of --

22 I'm forty-one years old -- to the time that I

23 could remember if I've ever seen a straight

24 man wear a pink hat. I will tell you that I

25 probably have seen a straight person wear a

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2 pink hat at some point in my life. When,

3 during this forty-one-year-old process, I

4 can't say right now at this seating.

5

Q

When people would say to you the

6 one comment you were able to relay to me,

7 hey, nice pink hat, do you recall who those

8 people were that said that to you?

9

A

It's a close-quarters

10 environment. The key players that I worked

11 with, the full-timers, have all said

12 something. Probably most at the beginning of

13 the season when they seen the hat and they

14 seen me we wearing it.

15

I mean, either a sleeveless

16 shirt on because it's hot, or whatever, or

17 there was this guy wearing a pink hat, you

18 know. I can't remember exactly who said

19 what/when about the pink hat.

20

Q

Would Rich say anything to you?

21

A

It would be in that same

22 category of questioning of me not being able

23 to say specifically if Rich said something,

24 what he said, and when. I just know that it

25 was talked about a lot.

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2

Q

As you're sitting here today,

3 you can't identify who specifically said

4 anything about your hat?

5

A

Not at this seating. To ask me

6 to think about the number of comments that

7 were made and who made them and exactly what

8 they said, that would be pretty broad.

9

Q

Did you maintain a diary during

10 your employment at Skydive Long Island?

11

A

No, I'm not graced with the time

12 to keep up with diaries.

13

Q

Did you ever take written notes

14 of the occurrence of your days while you were

15 employed at Skydive Long Island?

16

A

No. The only kind of

17 documentation that we have are jump logs.

18

Q

Did you make any notations in

19 your personal jump logs?

20

A

About pink hats, or just period?

21

Q

About anything.

22

A

My jump logs are really not

23 caught up, and there are printouts in Ray's

24 computer about how many jumps I did on a

25 given day, and that's my jump log right now,

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2 so there are no addendums or notes written

3 onto those. I just trust that that's the

4 number of jumps I made, and they're in a file

5 somewhere.

6

Q

You made contemporaneous notes

7 of your jump logs, of your days while

8 employed at Skydive Long Island?

9

A

Not that I can recall right now.

10

Q

Where do you currently reside?

11

A

My home of record is in

12 Missouri; Richmond, Missouri.

13

Q

Can I have your actual address?

14

A

Well, the actual address I

15 receive correspondence and everything at is

16 the Post Office Box that's I've had for about

17 seventeen years. That's my actual address.

18

Q

Do you have an actual home where

19 you sleep when you are in Missouri?

20

A

I do.

21

Q

Where is that?

22

A

That is located on a skydiving

23 center which is private airport called

24 Lexington Memorial Airport, and that is in

25 Henrietta, Missouri, which is just down the

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2 road from Richmond.

3

Q

You actually sleep there?

4

A

When I'm there, I do.

5

Q

How often are you there?

6

A

I haven't been home in awhile.

7 Over the course of seventeen years that that

8 place has been there, I estimate I've

9 probably been there twenty to thirty percent

10 of that entire time. It varies. It depends

11 on where I'm going to be, what I'm doing, if

12 I'm traveling, working, if I'm in Dallas for

13 an extended stay. It really varies. I have

14 no set schedule for when I'm going to be

15 there.

16

Q

Beginning in July of 2010, where

17 did you reside?

18

A

Beginning in July of 2010.

19 That's -- oh, beginning in July of 2010. My

20 home of record remains in Richmond, Missouri

21 at that airport.

22

Q

Where were you physically

23 residing?

24

A

Where I was physically in July

25 of 2010 was, I guess, in Coram, New York.

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2

Q

Where in Coram, New York did you

3 live?

4

A

I was leasing a condo from the

5 aforementioned Sal Falcone that we talked

6 about, and that was -- I can remember the

7 address but not the zip code. Three

8 Appomattox, A-P-P-O-M-A-T-T-O-X, Court,

9 Coram, New York, and I believe the zip code

10 might have been 11727, but you'll have to

11 look that up yourself.

12

Q

You resided there until when?

13

A

In 2010?

14

Q

Correct.

15

A

I stayed there until, I believe,

16 September 17, and if it wasn't exactly

17 September 17, it was real close to that, real

18 close. Probably within a day, which I don't

19 remember which day exactly, but it was just

20 after the time period that I was supposed to

21 leave anyway.

22

Q

Where did you go after that?

23

A

I have to think about it for a

24 second.

25

I believe I proceeded back

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2 towards Missouri. Yes, I did. I was in my

3 truck, and then I went back home to Missouri,

4 but along the way, I stopped at some other

5 drop zones.

6

Q

Where did you stop?

7

A

What drop zone I stopped at was

8 a drop zone that I sought employment at after

9 Ray fired me in July, and that was

10 Chicagoland Skydiving Center. At the time,

11 Chicagoland, they just moved this past

12 season, and you may have to look that up. I

13 can't remember exactly which city. I think

14 it was Hinckley, Illinois at the time.

15 They've moved.

16

Q

When did you stop by

17 Chicagoland?

18

A

It would have been in the third

19 week or so of September.

20

Q

And you asked them for

21 employment; is that correct?

22

A

At one time, I did; yes.

23

Q

That September, did you ask them

24 for employment?

25

A

I did not ask for employment in

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2 September, but rather I discussed the matter

3 of him not offering me employment in July in

4 response to Mr. Maynard terminating me in

5 June.

6

Q

Why did you drive there in

7 September then?

8

A

Because it is on the way home,

9 directly on the way home, and because I

10 wanted to have a face-to-face conversation

11 with the owner of the drop zone.

12

Q

Did you?

13

A

I did. I felt we were both

14 entitled to have a conversation about the

15 matter face-to-face.

16

Q

What did your conversation with

17 him consist of?

18

A

Mostly it was about the e-mail

19 exchange that we had regarding me responding

20 to his ad for help and his denying me

21 employment and the action that had taken

22 place at Skydive Long Island with Ray. We

23 discussed that and what I was going to do

24 about it, primarily.

25

Q

What was discussed about what

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2 happened with you at Skydive Long Island?

3

A

Well, we have the e-mails

4 between Mr. Doug Smith, he's the drop zone

5 owner, and I just told him my side of the

6 story.

7

Q

What was your side of the story?

8

A

I mean, what we already talked

9 about when you asked me about what Ray said

10 when he suspended me that day. I told them

11 all of that.

12

Q

Did you tell Doug Smith that you

13 felt you were terminated from Skydive Long

14 Island because you were gay?

15

A

I did, and I also supplemented

16 that with the ridiculous accusation that was

17 made that I inappropriately touched a female

18 passenger which he had, I think, enjoyed and

19 could appreciate my frustration with that

20 situation, based on the interaction that we

21 were having while we were having this

22 man-to-man talk.

23

Q

Well, you were at the deposition

24 of Rosanna Orelana; were you not?

25

A

I was.

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2

Q

In her deposition, she testified

3 that she did complain about you; did she not?

4

MR. ANTOLLINO: Objection.

5

Q

You may answer.

6

MR. ANTOLLINO: You can answer.

7

A

Umm --

8

Q

Yes or no?

9

A

It's not a yes or no.

10

MR. ANTOLLINO: If this is going

11

to be a yes or no --

12

MR. ZABELL: It is a yes or no.

13

A

I'd have to look back on the

14 record, but I think her boyfriend complained.

15

Q

You don't remember any testimony

16 about her complaining?

17

A

I do remember testimony about

18 her complaining.

19

Q

Do you doubt that a complaint

20 was made to Ray Maynard about you?

21

A

I doubt that the complaint came

22 from Ms. Orelana, and she was the passenger

23 that I took on the tandem. I doubt that.

24

Q

Well, who do you think the

25 complaint came from?

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2

A

I think it was clear that day

3 that the complaint came from Mr. Kengle,

4 which was Ms. Orelana's boyfriend.

5

Q

Why do you think Mr. Kengle

6 complained about you?

7

A

Well, he said during his

8 deposition what his reasons were.

9

Q

What do you believe those

10 reasons to have been?

11

A

Well, he said that I was getting

12 familiar with his girlfriend.

13

Q

Do you think that that's what he

14 complained to Ray?

15

A

Well, he said that that was one

16 of the reasons that he felt -- I'd have to

17 look back and see exactly what he said, but

18 that was one of the reasons. I mean, that's

19 what he said. He felt I was getting familiar

20 with his girlfriend.

21

Q

Do you believe that he actually

22 conveyed that to Ray Maynard?

23

A

Be a little bit more specific,

24 if you would, on what you're asking me to

25 answer there, if I -- how I believe he --

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2

Q

Do you believe that Mr. Kengle

3 actually called up Ray Maynard and

4 complained?

5

A

Oh, yes, I believe he called.

6

Q

Do you believe that he

7 complained that you were getting familiar

8 with his girlfriend on the jump?

9

MR. ANTOLLINO: Objection.

10

Asked and answered.

11

A

Yes, I believe he made a

12 complaint. I believe that he was testifying

13 under oath the day he said that. I wasn't

14 privy to the conversation that he had with

15 Ray, so I have to take him at his word under

16 oath that that is what he said when he called

17 Ray. To that extent, yes.

18

Q

Do you believe it was that

19 complaint that Mr. Maynard was acting on when

20 he suspended you?

21

A

Not entirely.

22

Q

Is the complaint that Mr. Kengle

23 made about you consistent with your sexual

24 orientation?

25

MR. ANTOLLINO: Objection.

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2

A

Okay, I think I understand the

3 question somewhat. Could you maybe be a

4 little more specific?

5

Q

I'd like you to try and answer

6 the question, if you can.

7

A

You're asking me if the

8 complaint -- let me just reword your

9 question.

10

Q

Well, I'd like you to just

11 answer my question, if you can, and if we

12 need to clarify thereafter, we will.

13

MR. ANTOLLINO: I'm going to

14

object.

15

MR. ZABELL: And you may object.

16

Q

You're free to disregard the

17 objection.

18

A

I want to make sure that I

19 understand the question clearly so that I can

20 give you an accurate answer. I think what

21 you're asking me is if Mr. Kengle's complaint

22 was about me getting familiar with his

23 girlfriend is consistent with me being gay?

24

Q

Yes.

25

A

No, I don't think that it is

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2 consistent.

3

Q

It doesn't sound like Mr. Kengle

4 complained about you being gay; correct?

5

MR. ANTOLLINO: Objection.

6

A

In that one complaint, no, no,

7 not in that part.

8

Q

You, in fact, testified that

9 Mr. Kengle complained that you were getting

10 familiar with his girlfriend; correct?

11

A

That's what he said.

12

Q

If he, in fact, complained, as

13 he testified he complained, then he didn't

14 complain about you being gay; correct?

15

MR. ANTOLLINO: Objection.

16

A

He said that. Ray did not say

17 that. Ray said something different when Ray

18 suspended me. Ray said that they complained

19 about my sexuality coming up and that they

20 were offended by it, and that was

21 inappropriate. He said that.

22

Q

Did you disclose to Rosanna Orelana

23 your sexuality?

24

A

I believe I did.

25

Q

Did you disclose your sexuality

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2 to Ms. Orelana because you sensed that she

3 was uncomfortable?

4

A

I believe so.

5

Q

Did you disclose your sexuality

6 in an effort to allay her discomfort?

7

A

I believe so, yes, and to make

8 me more comfortable, as well.

9

Q

Who was the customer on that

10 jump?

11

A

Who was the customer?

12

Q

Yes.

13

A

My particular customer on that

14 particular lift, on that load, was Ms. Orelana.

15

Q

Did you agree with Mr. Winstock

16 yesterday when he said your primary role is

17 to go from the airplane to the ground safely?

18

A

That is correct. That is our

19 number one priority, to bring the customers

20 back safely --

21

Q

Did you --

22

A

-- above all else.

23

MR. ANTOLLINO: Let him finish.

24

Q

Did you agree with him that your

25 secondary role is to make the jump experience

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2 enjoyable for the customer?

3

A

I agree that that is another

4 goal. Whether or not it's two or three, I'd

5 have to think about a little bit, but it is

6 one of our primary goals. Our other primary

7 goal is to make sure the customer is having a

8 good time, to the best of our ability, and to

9 the extent that we can do so without breaking

10 any rules or regulations of the FAA, the

11 United States Parachute Association, our

12 licensing manufacturers that give us our

13 licenses.

14

All of those things that we have

15 to take into account when we're trying to

16 give our customers that good experience. We

17 have to think about every single one of those

18 things on every single jump, so that is a

19 goal. We want to have a good time, and

20 whatever we can do to do that, but sometimes

21 it's not necessarily the second priority. It

22 might be three or four. There could be other

23 things going on that you have to worry about

24 that's number two.

25

Q

You chose to disclose your

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2 sexuality to Ms. Orelana because you sensed

3 that she was uncomfortable; is that correct?

4

A

I believe so, yes.

5

Q

It came back to you that it did

6 not allay her discomfort; correct?

7

A

Apparently not, if they called

8 and complained about it. She -- they must

9 not have -- and when I said "they," I mean

10 Mr. Kengle called and complained, but they

11 were together in it. I think Mr. Kengle was

12 mentioned as the brains of the operation, or

13 something to that.

14

MR. ANTOLLINO: Adding insult to

15

Ms. Orelana.

16

MR. ZABELL: Counselor, remain

17

silent, please.

18

Q

I believe you testified that in

19 the third week of September of 2010, you

20 stopped by the Chicagoland Skydive Center; is

21 that correct?

22

A

Chicagoland Skydiving, yes.

23

Q

How long did you stay at

24 Chicagoland Skydive Center?

25

A

Our conversation was about one

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2 hour, so I was at the drop zone probably

3 about two hours. Mr. Smith was flying the

4 aircraft. I had to wait for him to land the

5 aircraft for me to have an opportunity to be

6 able to talk to him.

7

Then sunset came, and I

8 discussed staying the next day and making

9 another jump or making a fun jump because I

10 didn't make another jump. I said, you know,

11 I'm within eight hours of home, maybe I

12 should just go for it, and he said, you

13 probably ought to try to just get home,

14 sounds like a long trip, so I decided to

15 leave and go home.

16

Q

Then you went home to Missouri?

17

A

I did. I made it that far.

18

Q

Is it safe to say that in the

19 third week of September, you made it back to

20 Missouri?

21

A

I would say closer to the fourth

22 week, the end of the September. Looking

23 back, it was in the late 20s of the calendar.

24

Q

How long did you stay in

25 Missouri for at that time?

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2

A

Before I went somewhere else,

3 you mean?

4

Q

Yes.

5

A

Approximately -- I'm pretty

6 busy. I do a lot of traveling, so I don't

7 have my travel itinerary exactly in front of

8 me, so I can't tell you for sure if I went

9 somewhere else between the next trip, but the

10 next trip that I can remember that I went on

11 was a cruise.

12

Q

A cruise?

13

A

Yes.

14

Q

From when to when did you go on

15 a cruise?

16

A

That year -- it shifts every

17 year by a week, so the dates, I don't -- it's

18 typically the third week in October, so I

19 believe that I would have left somewhere

20 around the middle of October because I

21 usually go a little early. It's a yearly

22 event, and I come back a little after the

23 event, so I usually go out there before I go

24 on the cruise ship and make some fun jumps,

25 and then go on the cruise.

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2

Q

Where do you cruise from?

3

A

It's typically from L.A. to

4 Mexico and then pack to L.A. Although,

5 sometimes it's from San Diego, but most of

6 the time, it's from L.A.

7

Q

What kind of a cruise is this?

8

A

It's a seven-day Mexican Riviera

9 cruise.

10

Q

Who do you go on this cruise

11 with?

12

A

Fellow passengers on the cruise.

13 Depending on the cruise ship and the size of

14 the ship, which varies from year to year, it

15 could be anywhere between 2,000 and 3,400

16 other passengers.

17

Q

Do you go with a group?

18

A

I do not go with a group. I go

19 by myself, but there are people that I know

20 on the cruise ship.

21

Q

How do you know these people?

22

A

From previous cruises and from

23 introductions from their friends to other

24 friends. It's over the years. I've gotten

25 to know a lot of people.

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2

Q

How did you get from Missouri to

3 L.A. in October of 2010?

4

A

I'm sure I flew. I normally

5 fly. The only time I drove was in 2009.

6

Q

Where did you stay in California

7 in October of 2010?

8

A

Before or after the cruise?

9

Q

Before the cruise.

10

A

Typically, I would stay at the

11 drop zone in Paris, California; Paris Valley

12 Skydiving Center. It's a very large

13 commercial facility, and they have bilitines

14 for visiting skydivers.

15

Q

They have what?

16

A

Bilitines. Bilitine is housing

17 or places to sleep. Bilitine, buildings,

18 bunkhouses, accommodations, work

19 accommodations. They have accommodations for

20 visiting jumpers.

21

Q

Do you pay?

22

A

You do pay a small fee. It's

23 minimal.

24

Q

Did you work while you were out

25 there?

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2

A

No, I did not.

3

Q

Did you attempt to work while

4 you were out there?

5

A

No.

6

Q

You stayed there for how many

7 weeks before your cruise?

8

A

It's not weeks. I would have to

9 go back and look at the itinerary

10 specifically, but typically, I'll go out

11 there a few days, so that can be four or five

12 days, so I can jump, and I like to leave

13 myself some leeway in case we have crappy

14 weather. I don't want to show up a day

15 before the cruise or two, and not get to

16 jump. Typically, it's four to five days, and

17 then we go on the cruise.

18

Q

The way you talk about jumping,

19 it almost seems like you need to get your

20 jumps in in order to keep your head on

21 straight, in order to maintain your mental

22 health; is that accurate?

23

A

No, I won't say that at all. I

24 won't say that that's accurate. I would say

25 that I've been jumping for almost twenty

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2 years, just like Rich Winstock yesterday.

3 We're almost the same age. We started in the

4 same year. We are dedicated to it. We are

5 passionate about it. We're professionals,

6 and we both share the same feeling in it, and

7 it's typically a comradery of a relatively

8 small group of society, the population, that

9 we all enjoy. I won't say that I need it. I

10 enjoy it.

11

Q

Do you get depressed if you

12 don't get to jump for a period of time?

13

A

Be more specific about do I get

14 depressed; about what?

15

Q

About jumping.

16

A

Do I get depressed about

17 jumping? Well, if I haven't jumped for a

18 period of time, then I seek and want to jump

19 soon.

20

Q

What period of time is that?

21

A

It varies. It depends on, you

22 know, if I'm really busy with school or if

23 I've had a hectic couple of weeks, or you

24 know, some people, you know, fun jumpers have

25 a hard time getting through the work week

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2 without thinking about jumping. They come

3 out during the week, in fact, after work and

4 make a jump to calm themselves down. It just

5 varies. It depends. I know I can feel when

6 I need to go make a jump.

7

Q

Have you ever made a jump just

8 to calm yourself down?

9

A

What do you mean by calm myself

10 down?

11

Q

Exactly how you just used the

12 term.

13

A

I plan on making a jump tomorrow

14 or Sunday or several jumps, so it's been a

15 little while already. I've got a lot of

16 things going on, and it's a nice, relaxing

17 thing. I think we're going to have great

18 weather, and I'm going to be with some

19 friends, and I'm going to have a good time.

20

Q

Where are you jumping tomorrow?

21

A

Likely, if the weather does hold

22 out, I will go to The Ranch which is in

23 Gardiner, New York. It's a large commercial

24 drop zone.

25

Q

You went out to California in

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2 the third week of October for some fun dives;

3 is that what you call them; fun jumps?

4

A

Just to clarify for the record.

5 Typically, jumpers that work in the industry

6 will call work jumps, work jumps, and jumps

7 when we're not working, where we are actually

8 customers of the drop zone and we're actually

9 paying for a spot on the airplane and we're

10 just jumping for fun, we call those fun

11 jumps.

12

All jumps are fun, but there's a

13 distinguishing -- we distinguish between work

14 jumps when we're actually working and getting

15 paid and jumps where we're actually just

16 playing, and those are fun jumps. Just to

17 make it easier for us to have this dialogue.

18

Q

So you went to California in the

19 third week of October for some fun jumps

20 before your cruise; is that correct?

21

A

Yes, that's correct.

22

Q

Then you went on the cruise for

23 seven days; is that correct?

24

A

That is also correct.

25

Q

Then you stayed in California

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2 for another couple more fun jumps; is that

3 correct?

4

A

That's correct. Some people

5 jump after the cruise, as well, about the

6 same period of time.

7

Q

Where did you go after those fun

8 jumps at the conclusion of your cruise?

9

A

2010; right?

10

Q

Correct.

11

A

I just went through this

12 routine, so I have to think about it for a

13 second. Okay. All right. Yeah, it's coming

14 back to me here. I went back to Missouri.

15

Q

What did you do in Missouri?

16

A

I was taking care of things I

17 needed to do around the house before it got

18 too cold to do; maintenance outside because

19 November, and, you know, cut the grass last

20 time, do maintenance, painting, whatever, you

21 know, anything that needed to be done outside

22 before it got too cold. I was doing that and

23 getting prepared for school.

24

Q

You went back to Missouri in the

25 end of October, early November to do some

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2 maintenance; is that correct?

3

A

Yes, and prepare for school.

4

Q

What school did you go to?

5

A

I did go to, and I am currently

6 going to Embry-Riddle Aeronautical University.

7

Q

Where is Embry-Riddle

8 Aeronautical University?

9

A

Well, it's a worldwide school.

10 It's the largest aeronautical university, so

11 they have locations, you know, primary

12 campuses; Daytona Beach, Florida and

13 Prescott, Arizona. However, I'm a worldwide,

14 online student.

15

Q

You were preparing to attend

16 Embry-Riddle via computer?

17

A

That's right. These are

18 compressed terms that move very quickly, so

19 once they get started, you really do need to

20 prepare before classes start so you can be

21 seamlessly able to go through it.

22

Q

When did you start going to

23 Embry-Riddle, initially?

24

A

The very first class I think I

25 ever took with them was back in 2006 or 2007.

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2

Q

What is the course of study that

3 you're pursuing?

4

A

It's a Bachelor's of Science in

5 aviation management, logistics technical

6 specialty, and I'm also seeking a minor with

7 that in international relations.

8

Q

The classes that you started

9 taking in 2010 or in and around November of

10 2010, when you did sign up for those classes?

11

A

Enrollment is between the 1st of

12 November and when classes start, which is

13 always on the 15th of the month, so I would

14 have enrolled in that window, or I would have

15 e-mailed my advisor a few days prior or so.

16 I would have to look back and see, but it's

17 in that window.

18

Q

And you had intended to take

19 those classes; correct?

20

A

Yes, I did.

21

Q

For how long did you intend to

22 take those classes?

23

A

How long did I plan on going to

24 school for that term, do you mean?

25

Q

Yes, in November of 2010.

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2

A

Until this is done. Until my

3 degree is done. I go to school every

4 November, so it's just planned.

5

Q

So since 2006, every November,

6 you're going to be attending school online?

7

A

I hadn't made that commitment to

8 that level back in '06 or '07, but certainly,

9 in the last, I think, four Novembers, I've

10 been at that, yeah.

11

Q

So from November of 2008 --

12

A

I believe so, and I'd have to

13 look and see about that, but I think that's

14 right. Eight, nine, ten, eleven; yes.

15

Q

So from November 2008, you

16 committed yourself to begin going to school

17 every November; is that correct?

18

A

Definitely for that term, yes.

19

Q

How long does a November term

20 last for?

21

A

It's eleven weeks.

22

Q

You know for that eleven-week

23 period since 2008, you're going to be going

24 to school, and you're not going to be doing

25 anything else; is that correct?

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2

A

I know that -- yeah, I know that

3 it's -- I'm going to be going to school and

4 that the likelihood of being able to do much

5 of anything else was pretty slim.

6

Q

Did anything in November of 2010

7 affect your ability to concentrate on your

8 classes?

9

A

Yes.

10

Q

What was that?

11

A

This situation that I'm involved

12 in with Ray.

13

Q

You mean the situation where you

14 were terminated?

15

A

The whole thing; the

16 termination, the suspension, the false

17 accusations, this case, all of it.

18

Q

Did Ray falsely accuse you of

19 something?

20

A

Yes, he did.

21

Q

What did he falsely accuse you

22 of doing?

23

A

He falsely accused me of

24 inappropriately touching a tandem passenger

25 at the hip, and he knows better that that

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2 didn't happen.

3

Q

Didn't Mr. Kengle accuse you of

4 that?

5

A

Well, we just learned that four

6 weeks ago, so that's the first time that I've

7 heard anybody else, other than Mr. Kengle say

8 that, so up until that point, that verbatim

9 came from Ray Maynard, and so Ray accused me

10 of it, and what's even worse is that Ray is

11 also an instructor. He's been jumping around

12 forty years, tandem instructor and an owner

13 of a drop zone, and he knows better. He

14 knows better. He knows better that that

15 didn't take place.

16

Q

But you know that Mr. Kengle

17 complained about it taking place; correct?

18

A

I know now that Mr. Kengle

19 complained about it, but before Mr. Kengle

20 testified, the only thing I knew was what Ray

21 said, so that's all I have to go on, so Ray,

22 in effect, is the person that accused me of

23 it.

24

Q

But Ray said to you that he

25 received a complaint, and he told you what

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2 the complaint was; correct?

3

A

Through that line of questioning

4 that we talked about earlier where I was

5 asking if there was anything else, and Ray

6 said, yeah, and he mentioned -- if we have to

7 look back to see exactly what I said -- where

8 he mentioned the inappropriate touching,

9 well, Ray said that.

10

Q

Ray said that the customer

11 complained about it; correct?

12

A

He said the customer complained

13 about it, yes. I would still --

14

Q

In November --

15

MR. ANTOLLINO: I'm sorry. The

16

witness hasn't finished answering the

17

question --

18

MR. ZABELL: Excuse me. You

19

have a right to object. Other than

20

that, your role is to remain silent.

21

MR. ANTOLLINO: My role is to

22

allow the record to be clear to let the

23

witness answer the question. Just like

24

you don't want him to interrupt you,

25

you need to let him finish answering

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2

the question.

3

MR. ZABELL: You, sir, are

4

interrupting the record, and you were

5

doing nothing to keep the record clear

6

and straight.

7

Again, you may object to the

8

form of a question. Beyond that, your

9

role is to remain silent --

10

MR. ANTOLLINO: No, that's not --

11

MR. ZABELL: -- please do so.

12

MR. ANTOLLINO: I'm allowed to

13

insist that you allow the witness to

14

answer the question, and I will

15

continue to do so if you continue to

16

interrupt the witness.

17

Q

In November of 2010 when you

18 started taking your classes, do you know what

19 classes you took?

20

A

If I could, I would like to

21 finish answering the question.

22

Q

I just asked you a question, so

23 you can start by --

24

MR. ANTOLLINO: Just answer his

25

question.

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2

Q

-- answering that.

3

A

All right. Repeat that

4 question, please.

5

Q

In November of 2010 when you

6 started taking classes, do you know what

7 classes you took?

8

A

Yes.

9

Q

What classes did you take?

10

A

From memory, I'll have to think

11 about this a little bit. Business

12 information systems, business law -- give me

13 just a minute -- and some other management

14 class. I can't...

15

Q

One other management class?

16

A

Yeah. It was management

17 production operations, or something to that

18 effect. It was a management-driven aviation

19 class. The specific title of that class, I

20 can't remember, but the other two, because

21 they were hard, I remember. Business law and

22 business information systems.

23

Q

Do you know what your grade was

24 in the business information systems class?

25

A

Yes. I got an A in all three

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2 classes.

3

Q

That's pretty good; right?

4

A

I guess. I suppose it is.

5

Q

Were you happy with your grades

6 in all three classes?

7

A

I was happy and surprised.

8

Q

You were surprised that you did

9 so well?

10

A

I was surprised I made it, yes.

11

Q

But you did?

12

A

I did.

13

Q

Do you take classes other than

14 in November of each year?

15

A

Yes.

16

Q

When is the next period of time

17 that you take classes?

18

A

Following the eleven-week term

19 that begins on November 15, I take classes in

20 the next term.

21

Q

When does the next term run

22 from?

23

A

It runs from February 15 until

24 the first week of May. Terms start on the

25 15th of every month all year long, but if

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2 you're already in a term, obviously, you're

3 going to finish that term, and then start

4 another one, so that's how I do it.

5

Q

If you started a class

6 November 15, you would have gone to school

7 from November through December through

8 January; correct?

9

A

That's right.

10

Q

Did you do anything between the

11 end of the November term and the beginning of

12 the February term?

13

A

So what you're asking me is in

14 the little break there?

15

Q

Yes. What did you do?

16

A

I went on a cruise.

17

Q

Where did you cruise to?

18

A

That was a Caribbean cruise; one

19 that I had booked a year in advance.

20

Q

Did you have fun on the cruise?

21

A

It was very refreshing after

22 what I'd just been through, so yes, I had a

23 good time.

24

Q

You know, I didn't even ask

25 before, and it was rude of me. Did you have

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2 a good time when you cruised from L.A. to

3 Mexico?

4

A

It's a fun cruise, yes. I go on

5 it every year, you know, if it wasn't fun, I

6 wouldn't go on it.

7

Q

You had fun when you cruised

8 from L.A. to Mexico; is that correct?

9

A

I had fun on the cruise, yes.

10

Q

You enjoyed the cruise?

11

A

I did.

12

Q

Was it refreshing, as well?

13

A

It is. It takes me away from

14 these worldly problems and gives kind me of a

15 moment where I can be with some good friends

16 and good people and do some jumps and get

17 away from it.

18

Q

How did you pay for the cruise

19 from L.A. to Mexico?

20

A

Specifically, what payment

21 method or --

22

Q

Where did you get the money to

23 pay for it?

24

A

That would be an accounting

25 thing that I wouldn't be able to tell you

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2 exactly what account I paid the money from,

3 but I typically buy those cruises a year in

4 advance, so if it was 2010, I probably paid

5 for it somewhere in late 2010 or early 2011

6 on a credit card because you have to put a

7 deposit down.

8

I think for the 2010 one, I went

9 ahead and signed up on the ship before

10 getting off actually for that particular

11 year. Sometimes I do that. Sometimes I

12 don't. Sometimes they make you a deal if you

13 sign up on the ship before you disembark, so

14 it just depends on what the deal is. If it's

15 good, then I'll sign up.

16

Q

Is it safe to say that one of

17 your hobbies is going on cruises?

18

A

No, it isn't, because I wouldn't

19 define that as a hobby.

20

Q

What would you define it as?

21

A

Going on a cruise?

22

Q

Yes.

23

A

Social experience. Maybe a

24 short vacation. I wouldn't call it a hobby.

25

Q

Is it your preferred social

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2 experience or a preferred social experience

3 for you?

4

A

It's not my preferred, but it is

5 a social experience that I enjoy. I mean, I

6 have lots of social experiences I enjoy.

7 Jumping is certainly one of them, so it's one

8 of them. I enjoy it.

9

Q

This cruise to the Caribbean in

10 that break between January and February,

11 where did that leave from?

12

A

Fort Lauderdale, Florida.

13

Q

Did you arrive early and stay

14 late again so you could jump?

15

A

I didn't get that luxury on that

16 one. The terms, again, are compressed.

17 They're very difficult. They're eleven

18 weeks. I had three finals to take and a term

19 paper to write and prepare for this case, the

20 interrogatories and admissions that you

21 requested, all in that time frame, so there

22 was some -- I had a number of things going

23 on, so I wasn't able to book any previous

24 time for anything other than making it to the

25 cruise ship terminal one day in advance to

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2 get on the ship.

3

Q

That February to May courses

4 that you took, how many courses did you take?

5

A

I took a full-time course load

6 of two courses and two courses is full-time

7 because of the compressed nature of the

8 classes.

9

MR. ANTOLLINO: Can we take a

10

bathroom break?

11

MR. ZABELL: Once I'm finished

12

with this line of questioning.

13

MR. ANTOLLINO: Okay.

14

Q

So the previous semester you

15 took three classes. This semester you took

16 two classes; correct?

17

A

I took three, and that was

18 overkill, and I'd never done that before, so

19 two classes is full-time, and I'm sticking

20 with the two classes.

21

Q

What two classes did you take?

22

A

In the February one?

23

Q

Yes.

24

A

There were more aviation

25 management, 400-level courses, and again,

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2 without having it in front of me, one of them

3 was operations. They were so similar in the

4 title that particular term that I kept

5 getting them almost mixed up, but Management 420

6 and Management 424, I can tell you, if you

7 want to look up the course syllabus.

8

Q

What kind of grades did you get

9 in those classes?

10

A

I received an A.

11

Q

In both of them?

12

A

Yes.

13

MR. ZABELL: I think your

14

attorney wants to take a bathroom

15

break.

16

THE WITNESS: Sounds like a good

17

idea.

18

(Whereupon, a recess was taken

19

from 1:44 p.m. to 1:54 p.m.)

20

MR. ANTOLLINO: All right,

21

Mr. Zabell, since you've mentioned it

22

in the previous three depositions, I

23

just want to make sure that I put on

24

the record that my client would like to

25

review a copy of the transcript and

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2

have thirty days to return it to you

3

sworn and signed by the three.

4

MR. ZABELL: We'll make it

5

available for him to review.

6

Are we exchanging deposition

7

transcripts?

8

MR. ANTOLLINO: Let's talk about

9

it later. I tend not to proceed too

10

unreasonably, but I'd like to talk

11

about that later.

12

MR. ZABELL: Wait. You tend to

13

not to proceed unreasonably?

14

MR. ANTOLLINO: I tend not to

15

proceed unreasonably with most of my

16

adversaries, but I want to make a deal

17

with you, if you're asking me for

18

something.

19

This is wasting our time here

20

today, so let's finish with the

21

questions, and let's talk nicely after

22

the deposition about it; okay?

23

MR. ZABELL: I will endeavor to

24

talk nicely after the deposition with

25

you.

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2

Does that work for you, Mr. Zarda?

3

THE WITNESS: Yup, I'm good.

4

Q

Before the break, we were

5 talking a little bit about why you were upset

6 with Mr. Maynard in that until you heard

7 Mr. Kengle's deposition testimony, you blamed

8 the complaint on Mr. Maynard; is that

9 correct?

10

MR. ANTOLLINO: Objection,

11

characterizes.

12

Q

You many answer.

13

A

I don't want to have you put

14 words in my mouth. Did I blame -- the only

15 information -- the only person I could hold

16 accountable for the accusation that was being

17 made to me at that time was Mr. Maynard,

18 because I didn't hear the customers complain

19 to me or my supervisor.

20

It wasn't written up on a piece

21 of paper for me to sign in the form of a

22 reprimand by Ray. There wasn't a statement,

23 letter, an e-mail, or anything generated by

24 the client for me to see that's tangible or a

25 recording or anything. This was just words

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2 from Ray's mouth that the customer said.

3 That's it.

4

Q

Did you not believe Ray when he

5 relayed this information to you?

6

A

It was hard to believe that

7 somebody could have said something like that,

8 so that led me to quite a few things. I was

9 angry myself because I thought it was so

10 ridiculous. I didn't understand it

11 completely, and so I didn't know what to make

12 of it. It was an unbelievable thing to hear,

13 so whether it was truth or not, to hear that,

14 it was an unbelievable thing to hear.

15

Whether that means Ray Maynard

16 was lying or not, that was a big question

17 mark that's been hanging over the whole

18 thing. What did the customer say; what did

19 they not say? Well, I think we found a

20 little bit of it out of what they said in

21 that deposition, so we know a little bit more

22 now about what was said, but for a long time,

23 I really wasn't sure whether Ray was flat-out

24 lying or exaggerated it or what.

25

Q

Now that you heard Ms. Orelana

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2 and Mr. Kengle testify, do you think that Ray

3 made up what he relayed to you in that

4 meeting?

5

A

I'm still not sure how I feel

6 about the truth of the testimony that was

7 given because so much time has passed.

8 There's been opportunities for the customer

9 and Ray to speak. There has been

10 opportunities for them to have their stories

11 corroborate, so I'm not sure that I'm

12 convinced as to the truthfulness of that

13 testimony that was given.

14

Q

So now you doubt the

15 truthfulness of Ms. Orelana and Mr. Kengle?

16

A

I doubt the truthfulness of the

17 whole thing. I know they made a complaint.

18 Whether it was genuine or not is probably

19 what's most in doubt.

20

Q

Do you know why they would

21 fabricate a complaint against you?

22

A

It could be for a number of

23 reasons. It could be -- do you want me to go

24 through some of the reasons that I think it

25 might be?

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2

Q

Please.

3

A

It could be just that Mr. Kengle

4 is insecure and maybe his insecurity led him

5 to say things and behave and act in a manner

6 that an otherwise normal person would not in

7 that situation. That's one reason. Another

8 reason could be, and I brought this up in the

9 termination to Mr. Maynard, maybe they were

10 just looking for a free jump, and they ended

11 up getting one, so that was stricken down

12 quite abruptly by Mr. Maynard as even a

13 possibility, so that could have been a

14 motivation. I don't know, beyond those two

15 things, what the motivations might have been.

16

Q

Do you know what Mr. Maynard's

17 motivation may have been for terminating you?

18

A

What his motivation may have

19 been? Be a little more specific on

20 terminating me in relation to me touching the

21 girl inappropriately, please.

22

Q

Do you know what Mr. Maynard's

23 motivation was for terminating you in or

24 about July of 2010?

25

A

All I know is what he said, so I

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2 can only attest to his motivations being

3 associated with what he said, so I can't

4 superimpose anything on Mr. Maynard's thought

5 processes, because they're rather abstract at

6 times, and they don't always make sense.

7

Q

So you think he terminated you

8 for the reasons he told you he terminated

9 you; is that correct?

10

A

Sounds like that's what I'm

11 saying.

12

Q

What were those reasons again?

13

A

Well, because I'm gay and that I

14 brought that up, or it was mentioned before

15 the customers and they were offended by it,

16 and that that was inappropriate and for

17 touching my female passenger in a way that

18 made her feel uncomfortable at the hips.

19

Q

Both of those things actually

20 occurred on the jump; is that correct?

21

MR. ANTOLLINO: Objection.

22

A

No. Let's be more specific when

23 you say this occurred.

24

Q

As part of the jump, you had to

25 touch the customer in the hip area; is that

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2 correct?

3

A

As part of the jump, yes, you do

4 have to touch the customer in the area of the

5 hips, but you don't have to touch them

6 inappropriately.

7

Q

And you sensed that the client,

8 Ms. Orelana, was uncomfortable when you were

9 touching her in the hips; is that correct?

10

A

No, that's not correct. I did

11 not sense that she was uncomfortable when she

12 was being touched around the hips. I just

13 sensed at some point, that she was

14 uncomfortable.

15

Q

In an effort to allay her

16 discomfort, you revealed your sexual

17 orientation; is that correct?

18

A

I believe that to be correct;

19 yes.

20

Q

So those things happened during

21 the jump that you had to touch her hips, that

22 she felt discomfort, and that you revealed to

23 her your sexual orientation. Those three

24 things happened, and they may have happened

25 abstractly, but they happened over the course

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2 of her jump experience; is that correct?

3

MR. ANTOLLINO: Objection to

4

form.

5

A

The way the question -- I think

6 it was a multiple question. The way it was

7 asked to me had different parts, so I broke

8 it down to make sure that they don't get

9 confused or inflated.

10

Q

Let me break it down again.

11

A

Okay, break it back down.

12

Q

During the jump with Ms. Orelana,

13 at some point, you put your hands on her

14 hips; is that correct?

15

A

I would put my hands in the

16 location around the hips that's necessary to

17 be able to perform the functions that I am

18 required to do as a tandem instructor.

19

Q

And at some point, you sensed

20 that Ms. Orelana was uncomfortable; is that

21 correct?

22

A

At some point, I sensed that she

23 was uncomfortable, but I can't say it was

24 because I was putting my hands anywhere near

25 her hips, so those two things are too close

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2 to each other in that question, and I'm

3 making sure that those thoughts are separate

4 so that they don't get inflated. I did not

5 sense that she was uncomfortable, because I

6 was putting my hands close to her hips.

7

Q

But you don't recall when you

8 sensed that she was uncomfortable; correct?

9

A

That's not correct either. We

10 haven't gotten to discuss much about what

11 happened in the airplane, so we haven't

12 talked about that. I believe that she became

13 uncomfortable around the time when I

14 mentioned something about my sexuality, and

15 so how close that was to the point when I

16 have to touch around her hips, I don't know,

17 because touching around the hips can take

18 place from the time that we sit down on the

19 benches from when we get in the airplane,

20 through the airplane ride, up to altitude,

21 through the hookup process, through sliding

22 down the benches to the door and out the

23 door, so that encompasses a time period of

24 fifteen to twenty minutes.

25

Q

You know you testified before

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2 that you only disclosed your sexuality in an

3 effort to allay her discomfort; right?

4

A

I think that's what I said

5 earlier.

6

Q

So the discomfort came first,

7 and then the discussion about your sexuality

8 came second; correct?

9

A

Sounds that way, yes.

10

Q

Not the other way around?

11

A

The other way around would have

12 been -- tell me what the other way around

13 would have been.

14

Q

The other way around would have

15 been what you just testified; that first you

16 discussed your sexuality, and then she became

17 uncomfortable.

18

A

Then she became uncomfortable.

19 That would be --

20

Q

It didn't happen that way;

21 right?

22

A

No, I don't think so. I'm not

23 real sure what the order of her discomfort

24 was. What I'm saying is this -- let me make

25 this clear. I don't think that her

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2 discomfort came from me touching her around

3 the hips.

4

Q

Even though that's what she

5 testified to; correct?

6

A

I don't think that's exactly

7 what she was saying that day in her

8 testimony. I think her boyfriend was the one

9 that was really saying that.

10

Q

But the one thing that you are

11 sure about is that, first, the discomfort

12 came, and then came the conversation about

13 your sexual orientation; correct?

14

A

First the discomfort came, and

15 then I brought that up to allay her

16 discomfort. Sounds like it.

17

Q

That February to May group of

18 classes, aviation management and one of the

19 operations classes, you got As in those, as

20 well; correct?

21

A

I did.

22

Q

What was the next set of classes

23 you took?

24

A

Well, that brings us to this

25 term, I believe.

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2

Q

So from May --

3

A

No, wait a minute. Let's see.

4 We're talking -- yeah, this term because it's

5 2011, so yeah, that brings us to this term.

6

Q

What did you do from May of 2011

7 to this current term, the November 15, 2011,

8 term; what did you do?

9

A

I did a lot of the things.

10

Q

A couple of cruises?

11

A

No, no cruises. Well, I just

12 went on a cruise, so...

13

Q

Stop lying to me, sir.

14

A

No, I cannot lie.

15

Q

Now, you know that I said that

16 as a joke.

17

A

Oh great. I'll take it as a

18 joke.

19

Q

Okay. I see you're starting to

20 warm up to me. It's okay.

21

A

No, I'm just --

22

MR. ANTOLLINO: I told him not

23

to, but go ahead.

24

MR. ZABELL: He clearly has. I

25

would imagine that that's the case.

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2

MR. ANTOLLINO: He warms up to

3

everyone, actually.

4

MR. ZABELL: I'm not really a

5

bad guy. Just Mr. Antollino doesn't

6

care for me all that much.

7

THE WITNESS: I don't think

8

anybody said you're a bad guy.

9

MR. ZABELL: I would hazard to

10

guess that Mr. Antollino, if he hasn't

11

said it, he certainly thought it.

12

THE WITNESS: Maybe.

13

A

So when classes ended in May of

14 this year, I had plans made to go on a trip

15 overseas.

16

Q

You had plans?

17

A

I had made plans, and then I

18 executed those plans.

19

Q

With precision?

20

A

I wouldn't say it was with

21 precision, but I would say it was kind of a

22 sloppy buildup to it, but we had some

23 roadblocks along the way.

24

Q

Where did you go?

25

A

I went to Norway.

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2

Q

Did you have fun?

3

A

I had fun, yes.

4

Q

Any chance you met your attorney

5 overseas?

6

A

No, I did not.

7

MR. ANTOLLINO: I would have

8

liked it to have, but it didn't work

9

out that way.

10

MR. ZABELL: Well, I know you

11

had told me on several occasions that

12

you were out of the country.

13

MR. ANTOLLINO: Yes, we were in

14

different parts of Europe.

15

Q

How long were you in Norway for?

16

A

It ended up turning into two

17 months.

18

Q

Two months. Now, I have to say

19 that the way you're saying that it turned out

20 to be a little over two months, you had a

21 very guilty look on your face, so that's

22 causing me to ask --

23

A

Guilt is a relative term.

24

Q

-- what's that?

25

A

It's a relative term.

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2

Q

Guilt is?

3

A

That's a relative, relative

4 term.

5

Q

Tell me what you did for the two

6 months, and why you're smiling when you're

7 talking about it.

8

A

The reason I'm smiling when I

9 talk about it is because it was a very good

10 trip. I had a great time that allowed me to

11 get away from the horrible winter that I had

12 which was dealing with this case and the

13 classes and other things that were going on

14 that were difficult, and it was an

15 unbelievable breath of fresh air, a nice

16 place.

17

Q

I've got to stop you. You said

18 some other things that were going on this

19 winter?

20

A

Just minor stuff.

21

Q

I'm going to need to know what

22 they are; you know that, right?

23

A

Okay, go ahead. Ask me.

24

Q

What were those some other

25 things that you just referenced?

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2

A

My partner, his father died over

3 the holidays, so that was tough. That just

4 added on to all this other stuff. I was out

5 there living on an airport, going to classes,

6 and we had an unusual run of bad weather and

7 a lot of the snow, and it's very rural. I

8 literally got in a situation where I was

9 snowed in to my house, and I couldn't even go

10 get food several times, and I didn't have

11 some water for part of time because

12 everything froze up.

13

Just when you add all that

14 together with classes, trying to deal with

15 this situation --

16

Q

"This situation" being the

17 lawsuit?

18

A

-- the lawsuit, getting these

19 interrogatories and these demands met that

20 were needed for this, my partner needing, you

21 know, strength from me for his loss. It was

22 a lot in a short amount of time.

23

The class load alone. I took

24 nine hours. That's a very heavy load for an

25 eleven-week term. They're compressed. Six

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2 hours is considered full-time, twelve hours

3 is maximum. They don't even let you take

4 more than twelve, so that just gives you an

5 idea of what kind of class load it is with

6 this university, and it's a leading

7 university, and they don't mess around.

8

Q

How did you do on your classes,

9 by the way?

10

A

I did good. I struggled. It

11 was very hard. It took a lot out of me, but

12 I did okay.

13

Q

You got As on them; right?

14

A

I did.

15

Q

Prior to 2009, how were your

16 grades?

17

A

They were the same.

18

Q

All As?

19

A

I've been getting good grades.

20 I wouldn't say all As. I think I got a

21 couple of Bs in there somewhere, but mostly

22 As.

23

Q

Is it safe to say that after

24 July of 2010, you've only gotten As in your

25 coursework?

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2

A

I think so.

3

Q

You finished that February to

4 May class, May, your classes end; you have a

5 scheduled trip to Norway?

6

A

Yes.

7

Q

Two fabulous months of Norway?

8

A

They were good moments.

9

Q

Any bad moments?

10

A

During that time?

11

Q

Yes.

12

A

Couple fatalities. Some people

13 injured. I mean, you got to take the good

14 with the bad. You know, it's not good when

15 you meet people on a trip where you're having

16 a good time and they end up dead. That's

17 not, you know, a great thing.

18

Q

Some of the people that you went

19 on the trip with ended up dead?

20

A

People that I met.

21

Q

How did they die?

22

A

Within the activities I was

23 participating in.

24

Q

May I inquire?

25

A

Yes, BASE jumping.

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2

Q

You were actually BASE jumping,

3 and on a BASE jump, somebody died?

4

A

Yes.

5

Q

And you were there?

6

A

I was in the area.

7

Q

That must have been devastating.

8

A

Yeah, that sucks when that

9 happens; without a doubt. We don't like that

10 to happen, but it does happen. I've been

11 jumping for almost twenty years, so you kind

12 of get a little used to some of that stuff

13 happening, but it's never pleasant when that

14 happens.

15

Q

How many fatalities were there?

16

A

During my trip, there were two

17 that I knew. As far as total, I don't know.

18 For the summer, I don't know.

19

Q

That must have weighed heavily

20 on you?

21

A

We don't like it, but it's part

22 of the nature of the activity that people

23 accept, like it or not, and it's something

24 that happens. It's just part of the reality

25 of it, and you deal with it, and you go on.

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2 It's kind of like dealing with losing a pet.

3

Q

Kind of like Disney's Circle of

4 Life?

5

A

I'm not familiar with that.

6

Q

No?

7

A

I'm not a big Disney follower.

8

Q

Any reason why?

9

A

As far as mainstream sports,

10 things like that, along with ball games, I'm

11 not into that, TV programs, and the main

12 reason is that I don't have time in my life

13 for much else. Cannot connect with much

14 mainstream things. It's a time thing.

15

Q

The two fatalities, were they

16 people you actually knew?

17

A

They were.

18

Q

People you had conversations

19 with?

20

A

Yes.

21

Q

People you shared a meal with?

22

A

Yes.

23

Q

People you shook hands with?

24

A

Yes.

25

Q

You were actually physically

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2 present when both of the fatalities occurred?

3

A

When the first one occurred,

4 that person had gone down to another place to

5 jump and had his fatality there, and the

6 second one occurred just around the corner at

7 another exit point from the exit point that I

8 was jumping from.

9

Q

And there were other injuries

10 besides the fatalities?

11

A

There were.

12

Q

How many other injuries?

13

A

You know, I don't have a

14 specific number. Injuries, they come and go.

15 I mean, they range from minor to major, and

16 anything in between. There were some

17 injuries. Some people got hurt and had their

18 trips shortened or delayed or had to take a

19 break or had to cut short.

20

Q

Over this two-month period, did

21 you see a grief counselor?

22

A

No.

23

Q

You came back from overseas in

24 June or July of this year?

25

A

No, I did not. I came back

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2 around the end of August.

3

Q

August. So you went from --

4

A

June to August.

5

Q

Okay. Where did you return to

6 in August?

7

A

Let me think. Oh, that's easy.

8 Dallas.

9

Q

How is Dallas?

10

A

Then, it was freaking hot.

11

Q

How were the stars at night?

12

A

Well, it's pretty polluted down

13 there and lit.

14

Q

Not big and bright?

15

A

No, not there.

16

Q

What did you do in Dallas in

17 August of 2011?

18

A

Well, for one, I was very hot

19 because it was 110 degrees, and I was not

20 adjusted or accustomed to that type of

21 weather change, so it took me just a little

22 bit -- you know, a week to get myself

23 acclimated because it was really hot. It was

24 one of the hottest summers on record with

25 more than ninety days of over 100-degree days

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2 in a row.

3

Fortunately, I was overseas

4 during much of that, but having returned from

5 being in Norway where it's just the polar

6 opposite of that, it was hot, so I went back

7 to Dallas in August to be with my partner, my

8 ex-husband for a moment.

9

Q

What is your ex-husband's name?

10

A

William Moore, M-O-O-R-E.

11

Q

Therein, is the family name

12 for --

13

A

Little Cat.

14

Q

-- Little Cat Moore?

15

A

Right.

16

Q

You said ex-husband?

17

A

Yes.

18

Q

When were you married to

19 William Moore?

20

A

As you may be familiar, gay

21 marriage is not legally recognized in most

22 parts of the country, so the term "married"

23 and use of the word "husband" and so forth

24 are, in the gay community, sort of used

25 interchangeably, even though they don't carry

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2 the legal status.

3

Q

When did you begin the period of

4 your relationship with William Moore wherein

5 you referred to each other as husbands?

6

A

Well, we met in September of

7 2000, September 8, 2000, in Dallas, Texas,

8 and so we were together for quite a few

9 years, and we started a business together and

10 so forth.

11

Q

Right. But my questions is --

12

A

When did we consider ourselves

13 married?

14

Q

Yes.

15

A

I'd almost have to ask Bill.

16

Q

Why; did you not consider

17 yourself married during a period of time

18 where he did?

19

A

Probably within two or three

20 years of our relationship because we acquired

21 things together and had significant trips and

22 things like that together.

23

Q

When was that; what year was

24 that?

25

A

I'm going to say in the

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2 neighborhood of 2002, 2003. I think that

3 would probably be about the right time.

4

Q

Did you live together during

5 that period of time?

6

A

Yes, we did.

7

Q

From when to when?

8

A

I've always maintained my home

9 of record at the location I mentioned

10 earlier, and I still have, but we lived off

11 and on together from shortly after we met in

12 late 2000, off and on through 2003, and

13 then -- there's been an awful lot -- and then

14 from 2005 to 2007, and then we've been mostly

15 separated most of the time from late 2007

16 through now.

17

Q

You referred to him as your

18 ex-husband.

19

At what point did you consider

20 him to be your ex-husband?

21

A

I think we both technically

22 would say as of late 2007.

23

Q

How is your relationship with

24 him now?

25

A

Complicated.

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2

Q

Is that a fancy way of saying

3 sometimes good; sometimes bad?

4

A

I think the word "complicated"

5 is the best choice for describing it.

6

Q

At times, does he cause you

7 aggravation?

8

A

Yes.

9

Q

And at times, do you cause him

10 aggravation?

11

A

Yes.

12

Q

But it's always his fault;

13 right?

14

A

Well --

15

Q

I said that as a joke. You

16 don't have to answer that.

17

A

I don't want to get myself in

18 any more trouble.

19

Q

You know that I'm going to show

20 him this transcript immediately, so...

21

I'm not. I'm kidding you.

22

A

I hope so. It is what it is.

23

Q

Not unlike how Ray Maynard's

24 relationship was with his ex-wife; correct?

25

A

I've only heard hearsay and

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2 rumors about it, but it sounded pretty

3 treacherous by some of the things I heard

4 floating around.

5

Q

Well, you actually had an

6 opportunity to speak to Ray about it; didn't

7 you?

8

A

Well, Ray actually had an

9 opportunity to speak with me about it, or at

10 least speak about it in my presence.

11

Q

And you had the chance to speak

12 to Ray Maynard's ex-wife, as well; correct?

13

A

I did, yeah.

14

Q

Would you characterize their

15 relationship anything other than complicated,

16 as well?

17

A

I have no way to be able to

18 answer that because I don't know the nature

19 of their relationship beyond that. They had

20 been together a number of years and that they

21 were getting a divorce and that Ray had left

22 her shortly before he terminated me.

23

Q

I'm sure that you'll agree that

24 when relationships are breaking up, people

25 are never at their best.

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2

A

Probably is true. That's

3 probably true.

4

Q

When you came back in August of

5 2011, you went and spent some time with your

6 ex-husband; correct?

7

A

That's right.

8

Q

How much time did you spend with

9 your ex-husband?

10

A

I'm going to say -- let me just

11 think because I've been pretty busy. What

12 did I do? The next few weeks.

13

Q

From August 2011 to September of

14 2011?

15

A

Until towards the end of

16 September, yeah. We're looking at four to

17 five weeks.

18

Q

How was his air conditioning?

19

A

Good.

20

Q

Helpful?

21

A

Needed.

22

Q

What did you do for that four or

23 five weeks?

24

A

Reflected on a great trip, for

25 one.

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2

Q

Did you work?

3

A

I did some work for the company

4 that we are involved in together that needed

5 to be done with the computers and with our IT

6 infrastructure that we have in place, and so

7 I worked on some of that and began to prepare

8 for getting ready to enroll in some of these

9 classes that I'm in now.

10

Q

Did you look for any work, other

11 than working for that company, during that

12 four or five weeks?

13

A

No, I didn't look for any, so I

14 did some tandems, you know, a couple of

15 weekends at a drop center in Texas, which is

16 another drop zone that I worked at part-time.

17 I did do some of those.

18

Q

From October to November 15, you

19 just cut the lawn and got yourself ready to

20 go to classes; is that correct?

21

A

No, that's not correct this

22 year. That was the routine the previous two

23 years. This year, I've yet to make it back

24 to Missouri, so the grass is about two feet

25 high, and if you'd like to come cut it, fly

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2 out there, and cut it for me. I'd appreciate

3 it because I haven't been able to get anybody

4 to do that yet.

5

Q

I think it's down, but okay.

6

A

It's laid over, but it's pretty

7 tall.

8

Q

I wouldn't be flying up to

9 Missouri; I'd be flying down, but we'll let

10 that go.

11

A

Yeah, I guess you're right.

12 It's actually across, but we'll let that go.

13

So no, I haven't been back to

14 the airport yet since I left in June and here

15 we are, it's December.

16

Q

How are you taking your classes?

17

A

Online.

18

Q

Where are you residing now?

19

A

I am in Dallas.

20

Q

Why did you not go from Dallas

21 to Missouri?

22

A

Literally because I just could

23 not work it in timewise between doing what I

24 was doing there, getting caught up from the

25 summer, coming up here for the depositions

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2 that we had in November, which was right

3 before school just started, and all those

4 things. I mean, just simply didn't have time

5 to make it happen.

6

Q

Where are you living in Texas

7 now?

8

A

I'm staying at the office.

9

Q

The office where you run your

10 business?

11

A

There is an apartment attached

12 to it, and I'm sleeping upstairs currently.

13

Q

You keep referencing how this

14 case is causing you stress.

15

A

Sure.

16

Q

Is that correct?

17

A

Yes.

18

Q

That's the stress of responding

19 to interrogatories and document demands and

20 admissions?

21

A

Well, last winter when that was

22 going on, it was just a lot of administrative

23 stuff. Obviously, you requested a lot of

24 things to try to come up with in a short

25 amount of time, and simultaneously taking an

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2 extra heavy load of classes, so yeah, that

3 created quite a bit of stress, just to get

4 all that together. That was quite a bit of

5 information, a lot of things to think about.

6

At the same time, I was trying

7 to do these classes, and you can really only

8 focus on one or the other. You can't be

9 doing homework at the same time as you're

10 doing that, so that created a lot of stress.

11

Q

You're doing all right with it

12 now?

13

A

With the case, or with the

14 stress?

15

Q

The stress.

16

A

This case and this situation and

17 what happened has -- no, I'm not doing okay

18 with it.

19

Q

Let's take this in a couple of

20 different directions.

21

A

Okay.

22

Q

Let's talk about the stress

23 involved in preparing for this case.

24

A

Okay.

25

Q

Are you doing okay with that

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2 now?

3

A

Better, better.

4

Q

The fact that now you know that

5 someone actually complained to Ray about your

6 conduct, did that add more stress or detract

7 from the stress?

8

A

I think that now that I'm being

9 able to learn some of the things and get some

10 information. I think some of the truth is

11 starting to come out more and more, so it's

12 making me feel a little better about what

13 happened. For me, from my perspective,

14 there's not as much of a big question mark as

15 to who said what, when, and who's going to

16 say what, when, so I think that now that

17 things are getting documented, testimony is

18 being given, and we're finding things out,

19 I'm starting to feel a little better about

20 it.

21

Q

What things did you find out

22 that you're feeling better about?

23

A

Specifically about the testimony

24 or -- why don't you break that down a little

25 bit?

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2

Q

You said that now that things

3 are coming out, I'm starting to feel a little

4 better about it.

5

A

Right.

6

Q

So what things are coming out

7 that you're now feeling better about?

8

A

As I said, when Ray suspended me

9 and when he fired me, there was no

10 documentation. There were no letters of

11 reprimand that I signed or offered or any of

12 that kind of thing, so that everything that I

13 was told about the incident came from Ray, so

14 we established that.

15

So he was the only source, and

16 his motives, to me, were not pure and unclear

17 and uncertain, so I had nothing else to go

18 on, other than what Ray said and what was Ray

19 thinking, and, you know, did he lie, did he

20 exaggerate, you know, all these things.

21

So now that Ms. Orelana and

22 Mr. Kengle have testified, it's helped to

23 refresh me about the jump. I've been

24 actually able to see the videos for the first

25 time that I asked to see when Ray suspended

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2 me, and he denied me access, and he had the

3 ability to let me see those videos right then

4 and there when he suspended me. We could

5 have done it. It could have happened and he

6 refused. He said it was irrelevant, and I

7 could have looked at it right then, so I

8 finally got to see that and see that the jump

9 was routine, the customers were happy, it

10 looks in the video, and there wasn't any

11 crazy thing hanging out there that I didn't

12 know about to be hidden from me, so stuff

13 like that makes me feel a little better.

14

And then also finding out from

15 both the customers' testimony, and they're in

16 complete agreement, that somebody else in the

17 airplane cracked a joke that could be deemed

18 inappropriate, and it wasn't me, causing me

19 to react the way I reacted with what I said.

20 So I feel vindicated some. It's actually a

21 little bit of a relief.

22

Q

What is it that was said that

23 caused you to say something?

24

A

Well, what they said was -- if

25 you recall, the boyfriend, Mr. Kengle, was

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2 bringing Ms. Orelana out to Skydive Long

3 Island to make a tandem jump for her

4 birthday. I think we agree on that. I think

5 even Ray agrees with that. That was the

6 circumstance, and I was taking Ms. Orelana on

7 her tandem and that the joke was to the

8 boyfriend that somebody else made, which was

9 Mr. Kengle, he's the boyfriend, how do you

10 feel about your girlfriend being strapped to

11 another man or another guy? It was either

12 man or guy, same thing.

13

So that was the joke that was

14 made, and they're a young couple, so that's

15 the not first time that joke has been used.

16 It's a golden oldie. It's been used several

17 times before, you know, at many drop zones.

18 It's a pretty routine, boring joke for us.

19

Q

Is that a gay joke?

20

A

That, itself, is not a gay joke,

21 but if everybody is okay with it, then it's

22 not even inappropriate, but apparently in

23 this case, Mr. Kengle is not okay with it or

24 maybe Ms. Orelana, or maybe neither one of

25 them were okay with it.

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2

I think, if I recall in their

3 testimony, they were saying, well, we're

4 young, we can take a joke, and they were okay

5 with that joke, but me saying something like,

6 don't worry, I'm gay, they were okay with

7 that, and I think they said that. That has

8 to make me kind of scratch my head a little

9 bit, so I'm being put in this situation where

10 I have sort of in my possession, because I'm

11 taking this girl on a tandem jump, and I'm

12 strapping her body to my body in an intimate

13 situation.

14

I have her and I have her

15 boyfriend sitting right over here

16 (indicating) with somebody else cracking a

17 joke about me strapping his girlfriend to my

18 body, and so I was not comfortable with that.

19

Q

Couldn't you have just said,

20 don't worry, they're being silly?

21

MR. ANTOLLINO: Objection. You

22

can answer.

23

A

You can speculate all the

24 different things that a person could say, but

25 I could have said nothing, or I could have

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2 said anything, so I said what I felt was the

3 best thing to say, at the time, for me and

4 for her and for him.

5

Q

And in hindsight, was that the

6 best thing to say?

7

MR. ANTOLLINO: Objection. Go

8

ahead.

9

A

In hindsight, if it were a

10 perfect world, then I suppose nobody could

11 make any jokes about anything because

12 somebody might get offended or be upset by

13 it.

14

So your questions was, in

15 hindsight, would I say it again; is that what

16 you're asking me?

17

Q

Sure. Knowing what you know

18 now.

19

A

About their complaint?

20

Q

Yes.

21

A

If I knew -- I don't think there

22 would be any way to know that the boyfriend

23 would get upset by that or that they would be

24 anti-gay or offended by gay remarks, you

25 know. There would be no way to know that, so

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2 I can't say. I can say this about it: I've

3 used that comment before in situations just

4 like that over the years to sort of resolve

5 or calm a situation, and it's worked for me,

6 and it's taken me out of the hot seat. It's

7 made me feel more comfortable to be able to

8 say, in that situation where I got somebody

9 else's girlfriend, I'm strapping them to my

10 body and somebody says something like that,

11 don't worry about me, I'm gay, I have an

12 ex-husband for proof, don't worry, to disarm

13 the situation, so if he hears me say that, he

14 can know, okay, he's not going to hit on my

15 girlfriend. He's gay anyway. So I don't

16 think I would change it.

17

Q

So, wait a minute. Are you

18 saying that Mr. Kengle didn't know you were

19 gay before that joke was made?

20

MR. ANTOLLINO: Objection.

21

A

Just re-ask that. Rephrase that

22 a little bit.

23

Q

Did you know if Mr. Kengle knew

24 you were gay before you told his girlfriend

25 you were gay?

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2

MR. ANTOLLINO: Objection.

3

A

Definitively, I have no way to

4 know if he knew. He didn't tell me he knew,

5 so he's sitting over here (indicating). We

6 all met in an instant, in a flash. It's just

7 like normal kind of like a conveyer belt. I

8 don't know.

9

Q

It seems to me like maybe you

10 were being accused of being straight as

11 opposed to being gay.

12

A

Nobody accused me when that joke

13 was made. Maybe people had assumptions. The

14 staff certainly knows I'm gay, so I don't

15 know if it has anything to do with who

16 cracked that joke, you know, cracking the

17 joke and trying to get a response for fun out

18 of all of us, because, generally, when that

19 joke is made, it is to get a response from

20 the customers in a fun way and not to make

21 anybody upset, and generally, people laugh

22 that off, oh, yeah, ha, ha, ha. Don't worry,

23 she comes home to me, you know. A lot of

24 times you'll hear the customer say that. I'm

25 her only man, or just stuff like that.

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2

Q

Now, did you --

3

A

That's the normal response.

4 People don't normally get upset.

5

Q

In July of 2010, did you ask

6 Rich to intercede on your behalf and try and

7 convince Ray not to terminate you?

8

MR. ANTOLLINO: I believe it was

9

June.

10

A

It was the end of June of 2010,

11 yes.

12

Q

And why?

13

A

Why did I ask Rich,

14 specifically?

15

Q

Yes.

16

A

Well, Rich is the person that

17 just a few minutes after Ray suspended me

18 that I went to with, as I've said earlier,

19 with the problem.

20

Q

Were you asking him that because

21 you enjoyed working at Skydive Long Island?

22

A

No, not specifically, no. I

23 wasn't asking him for that reason. I sought

24 his counsel immediately because I was upset.

25 That's the first thing when it happened, and

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2 I thought him knowing Ray for so long, him

3 being the chief instructor there and so

4 forth, his position there, he should know

5 about it, and so I went to make him aware of

6 what just happened, and he offered to, in

7 that conversation, to advocate on my behalf,

8 to talk to Ray and reason with Ray and calm

9 Ray down, and he told me Ray was on a

10 tangent, just let him calm down.

11

This is what Rich said he didn't

12 remember yesterday. Rich didn't remember

13 that conversation very well. I remember it

14 better than he does. Rich probably hasn't

15 thought about it that much anymore. I

16 obviously have, but Rich told me to go on

17 home, let me talk to Ray, and I'll get back

18 with you.

19

Q

But in 2010, you wanted to

20 continue to work at Skydive Long Island;

21 correct?

22

A

After the suspension, is that

23 what you're asking?

24

Q

Yes.

25

A

Yes, yes. I didn't want to lose

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2 any job. I didn't even want to lose that

3 week. I didn't want to lose a day.

4

Q

In 2010, did you enjoy working

5 at Skydive Long Island?

6

A

Up until that point.

7

Q

What was it about that job that

8 you liked working, that you liked; what was

9 about it?

10

A

There was a lot of things I

11 liked about it.

12

Q

Did you like the people you

13 worked with?

14

A

I liked the people I worked

15 with.

16

Q

Did you like the work

17 environment?

18

A

The work environment could be

19 better, but it could be worse. Work

20 environments at skydiving centers vary

21 widely, so none of them are perfect, but the

22 work environment, they all have areas where

23 they are dysfunctional. The work environment

24 was okay. I liked being able to make good

25 money.

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2

As you probably can see, the

3 instructors make pretty good money in that

4 short amount of time to work there, so that's

5 a good thing. I like the fringe benefits of

6 having being able to come to New York for a

7 season and be with friends that I have up

8 here and be able to go do things with friends

9 I have in New York, friends that I've met on

10 some of these trips. That, itself, was a

11 little bit of a driver to making me want to

12 come up here, and I made some relationships

13 with some friends, so it's like, hey, I think

14 I'll be working in Long Island next year, you

15 know, great. We're going to have a great

16 time, and so, yeah.

17

Q

Could you tell me where you've

18 applied for skydiving work since being

19 terminated in June of 2010?

20

A

Well, the first place I applied

21 was directly or pretty soon after Ray

22 terminated me was the one we mentioned

23 earlier, Chicagoland Skydiving in Hinckley,

24 Illinois.

25

Q

Do you know why you didn't get

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2 the job there?

3

A

Yes.

4

Q

Why didn't you get the job

5 there?

6

A

I didn't get the job there,

7 because the owner found out or was told by

8 somebody that I was suing Skydive Long

9 Island, and he felt I would be too much of a

10 liability for him to take on because of that.

11 And those are not exact quotations, but

12 that's what he said in an e-mail that he sent

13 to me which, I believe, has been forwarded on

14 to you and Ray.

15

Q

Do you know if he found out

16 about it because your lawyer had press

17 releases made of the lawsuit?

18

A

I know --

19

MR. ANTOLLINO: Objection.

20

Q

You may answer.

21

MR. ANTOLLINO: Objection to the

22

characterization.

23

A

I can say that that was

24 impossible because when he denied me that

25 employment, that was like two months before

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2 any legal action was taken.

3

Q

Are you sure of that?

4

A

I'm sure of that, because I

5 answered an ad for work at his drop zone in

6 July of 2010, and he denied me employment

7 right then, and no legal action had been

8 taken against Skydive Long Island or Ray at

9 that point.

10

When I finally got to talk to

11 Mr. Smith face-to-face, like I think I

12 mentioned I was going to do to him on the

13 phone at some point, he corroborated part of

14 that.

15

Q

Did you ask him how he found out

16 about the lawsuit?

17

A

I did ask him how -- or no, he

18 didn't tell me how he found out about the

19 lawsuit. I asked him when we were talking

20 face-to-face, I said, who told you that I had

21 filed a lawsuit against Skydive Long Island?

22 And he said that he had sources that he

23 wasn't willing to reveal, and I said that the

24 reason I'm asking you is because at that time

25 that you sent me that e-mail, I hadn't taken

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2 any legal action whatsoever, so basically,

3 what I was telling him is that somebody is

4 talking shit on me, and I'm pissed off.

5

Q

Did you ever find out who was

6 talking that shit on you?

7

A

I did not find out. I pressed

8 Mr. Smith, as far as I felt was gentlemanly,

9 and he wasn't willing to offer the source.

10 He just said he had sources, and apparently,

11 his sources were incorrect. For one, because

12 of the timing, and I don't know, you know,

13 how they're related to Ray or Ray's drop zone

14 or anybody that knows anything about what

15 happened.

16

All I can say is that I applied

17 because of what happened at Skydive Long

18 Island. I didn't get the job, and it was a

19 major drop zone, a major skydiving center,

20 and that upset me very much.

21

Q

Where else did you apply for

22 work?

23

A

I didn't directly apply, but I

24 went and had a meeting with the owner of Long

25 Island Skydiving Center, which is Ray's

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2 competitor on Long Island, and that guy's

3 name was Brian Erler. Don't quote me on it.

4 He's the only owner. I can't remember the

5 guy's name. I just can't remember.

6

Q

When did you speak to him?

7

A

I spoke to him probably around

8 that same time.

9

Q

Around July of 2010?

10

A

Around the end of July.

11

Q

The end of July?

12

A

Yeah. Because it was around the

13 third week of July, I think, if we look in

14 the e-mail from Doug Smith where we were

15 going back and forth talking about me working

16 for him. I think it was around maybe the

17 third week of July when he said no. It was

18 after that I think I talked to Long Island

19 Skydiving Center, and I drove out there in my

20 truck and sat down and discussed the matter

21 in detail with the owner of Long Island

22 Skydiving Center.

23

Q

What matter did you discuss?

24

A

I told him everything that we've

25 discussed right here today. I told him about

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2 me being complained about. I told him about

3 the accusations. I told him about the gay --

4 what Ray did to me. I told him about the

5 Chicagoland thing. I mean, I just told him

6 the whole thing.

7

Q

What did Ray do to you?

8

A

Ray fired me for being gay. He

9 accused me of something I didn't do. He

10 stole money from me and then gave it back.

11 He humiliated me in the skydiving community.

12 I'm trying to -- maybe the list of what Ray

13 didn't do to me might actually be shorter. I

14 have to think about it. He did a lot of

15 things.

16

Q

You were fired not for being

17 gay; you were fired because there were

18 customer complaints about you; correct?

19

MR. ANTOLLINO: Objection.

20

A

I disagree. I said that I think

21 it's a -- it's not -- you know, people don't

22 always get fired for just one thing. It

23 could be a culmination of things. I think

24 this was a culmination of all these things

25 we've discussed.

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2

Q

This wasn't the first time you

3 were fired by Ray; was it?

4

A

It wasn't.

5

Q

And you were fired the first

6 time because of an apparently inappropriate

7 interaction between yourself and a customer;

8 correct?

9

MR. ANTOLLINO: Objection.

10

A

I won't say that was

11 inappropriate interaction. I'd say that it

12 sounds like to me that the customer wasn't

13 satisfied, for whatever reason, in that

14 incident that was ten years ago, but I'm not

15 going to say it was inappropriate. I don't

16 agree that it was inappropriate.

17

Q

You had a customer that wasn't

18 satisfied then, and you had a customer that

19 wasn't satisfied now; correct?

20

A

The customer then, I believe,

21 wasn't satisfied with something about the

22 jump, and then in this case, the customer,

23 she didn't say that she wasn't satisfied with

24 the jump. She looked satisfied to me,

25 sounded like she said she was satisfied. She

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2 had a good time. She smiled in the video.

3 She got a picture with me. I think she was

4 satisfied with the jump. I think she just

5 had a complaint about something that happened

6 on the jump.

7

Q

Well, if you have a complaint

8 about something that happened on the jump, it

9 means you were dissatisfied with it; right?

10

MR. ANTOLLINO: Objection.

11

A

I disagree.

12

Q

So you think she was satisfied

13 but just had a complaint?

14

A

Yes.

15

Q

Okay. You say Ray stole money

16 from you?

17

A

He did.

18

Q

How did he steal money from you?

19

A

He docked my paycheck for the

20 full price of two tandem jumps and two

21 videos, and it really sucks because that's

22 just sort of like throwing gas on the fire

23 and really just sticking it to you.

24

You know, on top of all this

25 other stuff, whether it's just a bunch of BS,

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2 now he's going to take money out of my

3 paycheck for a tandem that I didn't even do,

4 and that was Mr. Kengle's tandem. I wasn't

5 his instructor, and for work performed by two

6 other of his employees, which were the video

7 guys, that I had nothing to do with. It

8 didn't make any sense to me that he was doing

9 that.

10

Q

And he immediately refunded you

11 that money; did he not?

12

MR. ANTOLLINO: Objection.

13

A

Not immediately.

14

Q

Did he refund that money before

15 the lawsuit was filed?

16

A

He did before the lawsuit was

17 filed.

18

Q

When did he refund that money to

19 you?

20

A

One week later when he

21 terminated me after he spoke to his lawyer,

22 which I think is kind of the key thing about

23 that, after he spoke to his attorney, which

24 he admitted when he terminated me, that he

25 did.

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2

Q

You think there's something

3 wrong with speaking to his attorney before

4 terminating you?

5

A

No. I think he has a right as a

6 business owner to make business decisions,

7 and if that involves seeking Counsel and

8 getting advice from an attorney, that's his

9 right to do so. I think if it's for the

10 purpose of trying to backtrack or maybe cover

11 his tracks for mistakes he might have made,

12 it's probably still legal to speak to your

13 attorney in that matter, but I think that's

14 what he was doing.

15

Q

What mistakes do you think he

16 made?

17

A

Well, he stole money from my

18 paycheck. He didn't pay me for the jump that

19 I did with Ms. Orelana, and then he actually

20 took money from me for the other jump with

21 Mr. Kengle and the two video people out of my

22 paycheck. We have it documented. We have a

23 record that he actually did that, and then,

24 of course, we have it where he gave the money

25 back after he either spoke to his attorney

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2 and learned that what he did was either wrong

3 or, perhaps, it might even have been illegal

4 and it was, you know, unethical, as well.

5

Q

What other mistakes did he make?

6

A

What other mistakes did he make

7 in relation to --

8

Q

You said he made mistakes, so

9 I'm asking you what mistakes were made.

10

A

Oh, okay. I see where you're

11 going. I'm sorry. It just took me a moment

12 to focus. My opinion what the mistakes were?

13

Q

I'm asking you what mistakes he

14 made because you said he made mistakes.

15

A

He didn't, to my knowledge,

16 investigate these complaints made by the

17 customers. What he did was he just took

18 action against me, his employee, without

19 investigating and asking anybody else in the

20 airplane, any of the other instructors, the

21 cameraman, without reviewing the video, any

22 of those things to perform an investigation.

23

He just took adverse action in

24 an angry manner against me as soon as he

25 learned of the complaints. I think that was

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2 a mistake. And he wouldn't even let me, when

3 he was questioning me about whatever it was

4 the incident was, he wouldn't even let me

5 reflect upon the videos that were readily

6 available. He wouldn't let me see them. He

7 was asking me questions, he was angry, he

8 wasn't calm, about a jump that took place,

9 who knows, twenty to thirty jumps ago and

10 three days ago.

11

He's asking me details about

12 this, and yet, he wouldn't stop long enough

13 to let me look at the videos and say, hey,

14 okay; oh, yeah, I think I remember those

15 people. Okay, all right. You know, that's a

16 mistake.

17

If you're going to take action

18 against an employee, you should at least give

19 them the common courtesy of being able to

20 look at their records and give them an

21 opportunity to respond. He didn't give me

22 that. He just brought me in that room that

23 day to tell me what he was going to do to me,

24 and then he did it.

25

Q

Any other mistakes he made?

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2

A

Any other mistake he made, let

3 me think. Is this a general,

4 all-encompassing question?

5

Q

Yes.

6

A

Mistake about how he runs his

7 business, or just anything?

8

Q

We're talking about mistakes

9 having to do with your employment.

10

A

Just having to do with my

11 employment, okay.

12

I think a mistake that he made

13 was to mention at any time, either in the

14 suspension or the termination, this issue

15 about personal information in front of

16 customers. Seems to be something he's

17 concerned about. Seems to be something he's

18 passionate about, not having happened yet.

19

He has the -- what's the word

20 I'm looking for -- I'm getting tired. He had

21 the leeway to discuss his marriage in front

22 of staff, when he was leaving his wife, when

23 there was other customers standing around.

24 I'm trying to understand what this whole

25 business is about me saying something

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2 personal about myself, personal information,

3 like he said in the termination, and then him

4 talking about his personal life in earshot of

5 customers, so it seems like that's a mistake.

6

If you're going to fire somebody

7 and use that as part of the reason and then

8 you do it yourself, it seems a little

9 hypocritical.

10

Q

Did you tell him that?

11

A

No, I didn't have an opportunity

12 to tell him that.

13

Q

What other mistakes?

14

A

Well, okay. I'm thinking about

15 some more things because Ray has made a lot

16 of mistakes, in my opinion, so to come up

17 with all of them in one seating... I need to

18 take a moment.

19

I think that Ray had some

20 concerns about the issue of my ankle, and so

21 the way that he handled that he could have

22 been handled better. He had questions for me

23 about the Workers' Comp that I received, and

24 all of that. And his mistake was, instead of

25 asking me questions and calling me on the

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2 phone or sending me e-mails or when he had a

3 question, having a dialogue with me about it,

4 he saved up all this stuff until a week

5 before I came to work for him in 2010 -- he

6 calls me about six days -- I have my vehicle

7 packed, I have everything ready to go so I

8 can report to work on time on May 15, 2010,

9 and I get this blistering phone call, and

10 it's Ray Maynard, in my ear, shouting at me

11 about this Workers' Comp stuff that was over,

12 as far as I'm concerned, four months prior,

13 and so I think that was a mistake.

14

If you can imagine my surprise,

15 I'm getting this phone call from the guy I'm

16 going to work for another season, and he's

17 yelling at me, in my ear, just before going

18 up there. I conferred with my drop zone

19 owner at the airport I live about it and got

20 his opinion, and he said he thought that was

21 odd. I said, what do you think I should do,

22 and he said, well, he didn't tell you not to

23 come up to go to work, so go up there and do

24 your job and come home, so I said, okay,

25 because I don't really have a choice at this

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2 matter.

3

But what was a mistake was, he

4 just went off on a tangent, like he has a

5 history of doing, without getting the facts

6 and without asking the questions that needed

7 to be asked so he can get the facts to find

8 out what really happened. Just like in this

9 case, where he suspended and fired me. It

10 was just a prelude to that with the Workers'

11 Comp thing.

12

He didn't know what he was

13 talking about when he called and yelled at

14 me. He didn't have the information in front

15 of him. He was just reacting to either --

16 whatever it was that he was reacting to.

17

I'm not able to talk to Ray when

18 he's being irrational like that and yelling.

19 You can't talk to Ray. Both when Ray

20 suspended me, he stomped out of the room, and

21 when he fired me, he stomped out of the room.

22 I mean, it gets to a point where you can't

23 deal with him. You can't talk to him. What

24 are you supposed to do? I think that's a

25 mistake.

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2

If you're going to be a CEO, if

3 you're going to run a company, you're going

4 to have to be able to make rational

5 decisions. You're going to have to listen to

6 what your employees say. If you've got a

7 problem with an employee or something comes

8 up, you need to investigate it from all

9 angles. You need to get the information, and

10 once you get the information, then you're at

11 a position where you can discuss the

12 information with the person and then make

13 decisions. Ray didn't do that. That's a

14 mistake.

15

Q

Anything else?

16

A

Unfortunately, yes.

17

I believe after kind of talking

18 to some people, that Ray -- Lauren Callanan,

19 she is the manifest person and the office

20 person at Skydive Long Island, that Ray may

21 have been upset that his Workers' Comp

22 insurance went up drastically as a result of

23 the claim for my injury, and so I think Ray

24 was taking that out on me, and I don't think

25 it was fair.

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2

Q

Do you think you were terminated

3 because his Workers' Comp premiums went up?

4

A

No. He terminated me for the

5 reasons that we discussed.

6

Q

Which you were accused of

7 inappropriately touching a woman and then

8 sharing the fact that you don't like women

9 with her?

10

MR. ANTOLLINO: Objection.

11

A

I didn't say I didn't like

12 women. You said it.

13

Q

Sharing with her your sexual

14 orientation --

15

A

Yes.

16

Q

-- which indicated that you

17 didn't like women in that respect.

18

A

I don't like that wording being

19 on the record because I didn't say that. I

20 never said I didn't like women. Women in

21 that manner, I need you to break that down.

22 What do you mean by that manner?

23

Q

You were accused by Ms. Orelana

24 of touching her inappropriately --

25

A

Right.

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2

Q

-- and then disclosing to her

3 your sexual orientation, which indicated that

4 you are not sexually attracted to women?

5

A

I would say that that would

6 indicate that. By me saying, don't worry I'm

7 gay, would convey that idea.

8

Q

It's somehow saying, don't

9 worry, if I'm touching you in a manner that

10 makes you feel uncomfortable, I'm not acting

11 on it; correct?

12

A

No, not correct.

13

Q

Can a gay man ever touch a woman

14 inappropriately?

15

A

They can. They could. So no,

16 it's not to convey that idea. It's to

17 resolve the situation about the joke that was

18 made in front of the boyfriend about the

19 girlfriend being strapped to another man,

20 which was me, and to quell that situation and

21 to calm that situation down.

22

Q

And you felt that that needed to

23 be calmed down?

24

A

Say that once more, please.

25

Q

You felt that that situation

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2 needed to be calmed down; correct?

3

A

Yes.

4

Q

Because at some point, you

5 sensed Ms. Orelana was uncomfortable;

6 correct?

7

A

Yes.

8

Q

You just don't know when --

9

A

I don't.

10

Q

-- you just don't know when it

11 was in relation to the joke being made?

12

A

No. I mean, there's a lot of

13 things going on in the airplane. It's a

14 fifteen- to twenty-minute ride up, depending

15 on the load. It's a pretty routine process.

16

Q

During that process, did you

17 ever rest your head on Ms. Orelana's shoulder

18 or neck?

19

A

No. And I know what she said

20 about that. We can discuss this for a

21 second, but before we do, do you want me to

22 finish talking about Ray's mistakes?

23

Q

We'll get to that.

24

MR. ANTOLLINO: Just answer the

25

question.

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2

THE WITNESS: All right. I just

3

didn't want to get --

4

MR. ANTOLLINO: Answer the

5

question.

6

THE WITNESS: -- to where I was

7

forgetting where I was going thinking

8

about all Ray's mistakes --

9

MR. ANTOLLINO: Okay, answer the

10

question.

11

THE WITNESS: -- because it

12

takes awhile.

13

A

The question was about me

14 resting my head on her shoulder?

15

Q

Correct.

16

A

No, I didn't rest my head on her

17 shoulder, and after hearing her testimony,

18 after seeing the video, it's very easy for me

19 to see what that's about.

20

Q

What's that about?

21

A

Well, what that is about is me

22 leaning forward to give her instructions

23 prior to leaving the aircraft, like I've done

24 thousands and thousands of times before, in

25 her ear so that she could understand and hear

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2 them without having to shout at them or

3 without having to be yelling at them, at the

4 customer, because the airplane is noisy, and

5 all the other instructors are talking and

6 they're doing the same things, so everybody

7 is talking in the plane.

8

It gets to be really noisy in

9 there, plus the noise of the aircraft, and

10 then the door is coming open, so there is

11 even more noise. When you have a customer,

12 and you've seen the video, strapped to you

13 shoulder to shoulder, hip to hip, their head

14 is right here (indicating) in my face.

15

If you're going to talk to

16 somebody with their head right here

17 (indicating) in your face, you're talking to

18 the back of their hair or the back of their

19 neck, so if you want to talk to them where

20 they can hear you, then you're going to lean

21 over and talk to them in their ear, and it's

22 right here (indicating). So her ear, or a

23 customer's ear -- you try the harness on

24 yourself and you'll see, when you're sitting

25 on the bench -- it's right here (indicating),

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2 so this, what did he say,

3 whispering-in-your-ear thing that Mr. Kengle

4 was upset about, there was no whispering in

5 her ear. There was only me giving her

6 instructions that she needed to have to make

7 the jump, in her ear.

8

Q

She might have been completely

9 wrong --

10

A

She --

11

Q

-- wait. You have got to let me

12 finish.

13

A

Okay.

14

Q

She might have been completely

15 wrong and misread all of the things that she

16 complained about; is that correct?

17

A

That's very possible.

18

Q

In fact, is it more than

19 possible; is it probable?

20

A

It's probable. It's probable.

21

Q

Everything she complained about

22 is probably wrong?

23

A

Yes, it's probably wrong.

24

Q

But she complained about it

25 anyway?

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2

A

She did, and customers complain

3 about all kinds of things. They complain

4 about stuff that you can do nothing about

5 involved in this thing called tandem jumping.

6 It's hot in the airplane. It's too loud.

7 It's too cold. The harness is too tight.

8 The harness is too loose. It can go on and

9 on and on, and they can be wrong about it.

10 The harness can be just the way it's supposed

11 to be, or they could just not like it.

12

Q

Do you think that Ray Maynard

13 took the opportunity to take Ms. Orelana and

14 Mr. Kengle's mistaken complaints about you

15 and coupled that with his being upset about

16 his Workers' Compensation premiums going up

17 and taking that opportunity to fire you?

18

MR. ANTOLLINO: Objection to

19

form.

20

Q

Is it possible?

21

A

I think it's possible.

22

Q

Do you think it's probable?

23

A

I think it's just possible. I

24 think it's possible that it's a package deal.

25

Q

Okay.

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2

A

If he did that, that's awful.

3 It's just as bad as if he didn't do it, and I

4 think it's even illegal, so I hope he didn't

5 do that.

6

Q

But you don't know if that was

7 his motivation; do you?

8

MR. ANTOLLINO: Objection.

9

A

There's no way for me to know

10 that. Beyond that, he called me on the phone

11 a week before I came up there yelling at me

12 and angry and shouting about the Workers'

13 Comp thing, and it didn't make me feel very

14 good about the situation, and so I can tell

15 you a little bit about what I remember about

16 the conversation.

17

Q

I have no interest.

18

A

Okay.

19

MR. ANTOLLINO: Counsel, do you

20

have some of that iced tea you

21

promised? I need a little lift.

22

MR. ZABELL: You can ask me a

23

little nicer, and yes, I will get you

24

an iced tea.

25

MR. ANTOLLINO: Thank you.

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2

MR. ZABELL: Let's get this man

3

a drink.

4

(Whereupon, a recess was taken

5

from 3:35 p.m. to 3:59 p.m.)

6

Q

Before the break, I was asking

7 you questions about the possible likelihood

8 that you were terminated because Ray Maynard

9 was upset that his Workers' Comp policy went

10 up because you had filed a claim; do you

11 recall that?

12

A

I recall that.

13

Q

Do you recall testifying that it

14 was, in fact, possible that that was one of

15 his motives?

16

A

I said that it was possible.

17

Q

And another one of his motives

18 could have been that Mr. Kengle and

19 Ms. Orelana complained about their jump; is

20 that correct?

21

A

Sounds like it, yeah. I mean,

22 that's what he told me.

23

Q

During the break there was, what

24 I would characterize as, innocent banter

25 between your attorney and myself, and I think

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2 you were involved, as well; is that correct?

3

A

Yes.

4

MR. ANTOLLINO: It was off the

5

record.

6

MR. ZABELL: Yes, absolutely.

7

Q

One of the topics that were

8 discussed were gay jokes, jokes regarding

9 people who are gay, and I don't think anybody

10 was offended by them. I don't think I made

11 any of them, but do you engage in jokes about

12 being gay?

13

A

Depends on the situation and

14 where and when, like -- could you be more

15 specific?

16

Q

Sure. Could there be an

17 occasion where making a joke that has to do

18 with someone's sexuality would be

19 appropriate?

20

A

Is this in a social setting, at

21 work, at home, family, or where?

22

Q

In the setting that we were just

23 in during a break at a deposition --

24

A

Yeah.

25

Q

Were we not making a joke?

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2

A

We were.

3

Q

Was it appropriate?

4

A

I thought it was okay.

5

Q

Who made the joke?

6

A

Greg made a joke, and I

7 corroborated the joke.

8

Q

And I laughed at the joke;

9 correct?

10

A

Yeah.

11

Q

And I laughed completely

12 appropriately?

13

A

I wasn't offended by it.

14

Q

What kind of setting would you

15 call that?

16

A

I'd call it casual. I mean,

17 we're in an official setting, but I would say

18 that that was casual.

19

Q

Are you more comfortable with

20 gay jokes being make around me because I'm a

21 Civil Rights attorney?

22

MR. ANTOLLINO: Objection.

23

A

No. I didn't even know you were

24 Civil Rights attorney, to be honest, so I

25 didn't know you were a Civil Rights attorney.

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2

Q

Okay.

3

A

Are you a Civil Rights attorney?

4

Q

That's what we're here

5 litigating about today; correct?

6

A

Oh, I know that. I didn't know

7 that was your area of specialty.

8

Q

Yes, it's all I do, Civil Rights

9 and labor and employment.

10

A

Oh, okay.

11

Q

Have you ever had e-mail

12 correspondence with your friends where jokes

13 were made about your sexuality?

14

A

I'm sure there has. I'm sure

15 there has been some. FaceBook, possibly.

16

Q

Have any of your friends

17 referred to you as a homo?

18

A

They have.

19

Q

Have you ever referred to any of

20 them as a homo?

21

A

Possibly.

22

Q

Do you believe that they have

23 referred to you as a homo inappropriately?

24

A

Well, technically, if they've

25 called me a homo, they're correct. I'm a

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2 homosexual.

3

Q

But if I had never met you

4 before and I called you a homo, even though

5 it may be correct, it wouldn't be considered

6 appropriate; would it?

7

A

That's probably on the boundary.

8 It would probably just depend on the

9 by-language, the interaction that we were

10 having, the rapport that we were having.

11

If you were walking down the

12 street and you said, hey, homo, and you

13 yelled at me and were a stranger, that would

14 probably sound derogatory. If we were just

15 hanging out with some friends, it would be

16 all right.

17

Q

You're comfortable enough in

18 your sexuality that if somebody was going to

19 make jokes with you about it, it was clear

20 that their intention was just to invoke a

21 smile or some laughter, that it would be

22 fine; correct?

23

A

Correct.

24

Q

Did anybody at Skydive Long

25 Island bring up your sexuality in an attempt

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2 to hurt your feelings?

3

A

In an attempt to hurt my

4 feelings, I can't remember specifics. I

5 don't think so. Like we just talked about,

6 some borderline stuff. I think that an

7 attempt to hurt my feelings would imply

8 malice and so that the person was wanting to

9 be malicious, and so I don't think anybody

10 there was wanting to be malicious to me, so

11 they might have done it in error or

12 ignorance, possibly, not knowing what to say

13 or how to say something; yeah, in that regard

14 possibly, but not -- I don't think anybody

15 was being malicious about it.

16

Q

And if somebody had brought

17 something up to you in error, did you feel

18 comfortable addressing it with them?

19

A

Again, specifics over this whole

20 time period is difficult for me to come to.

21 I'm just thinking back. There were some

22 social cues, you know, moments where somebody

23 like Willie, possibly, or Ben might have said

24 something that was a little off just because

25 they didn't know any better. I didn't feel a

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2 need to try and correct it beyond maybe --

3 no.

4

I mean, if there was an

5 opportunity to be able to correct it or

6 address it without causing a stink and making

7 an issue out of it because I don't want to

8 make an issue out of anything, then I

9 probably would say something, but it

10 certainly wouldn't be something I would go

11 tell Rich about or make a big deal about.

12

Q

Did you find any of your

13 coworkers at Skydive Long Island to be

14 homophobic?

15

A

Yes, I did.

16

Q

Who was homophobic?

17

A

Ray.

18

Q

Ray was?

19

A

Yes.

20

Q

Ray, the man who hired you on --

21

A

Yes.

22

Q

-- three different occasions?

23

A

Yup.

24

Q

Do you think that your sexual

25 orientation affected whether or not you were

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2 hired by Ray Maynard?

3

A

Which time?

4

Q

All three times.

5

A

I think that Ray tolerated it up

6 until a point where he could no longer deal

7 with it himself, so that would be the best

8 answer I could give for that.

9

Q

Are you saying he tolerated it

10 up until a point where he received a

11 complaint about you?

12

A

Up until a point where he,

13 himself, for whatever reason, couldn't deal

14 with having me be gay and be there working

15 for him. For whatever reason, whether it's

16 him being a homophobic person, or he has

17 issues with homophobia or gay people.

18 Whatever the reason is, and I don't know what

19 all the reasons are. I got a little

20 information from his wife about some possible

21 reasons.

22

Q

What were those possible

23 reasons?

24

A

That Ray hated my sexuality, I

25 believe, is what she said in an e-mail and

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2 spoke negatively about me often during their

3 marriage, so I thought that was intriguing.

4 Not completely surprised to hear that. Don't

5 know what Ray was thinking.

6

Q

So Ray's issue with you is just

7 because you're gay; is that what you're

8 saying?

9

A

Which time; when he fired me?

10

Q

When he fired you in 2010.

11

A

Well, when he fired me in 2010,

12 he said it was because the issue of my

13 sexuality came up in front of the customers.

14 He was firing me for that. It was

15 inappropriate, and the issue about touching

16 this girl inappropriately came up, and that's

17 what he said.

18

Q

But you think it also may be

19 because you caused his Workers' Compensation

20 premiums to go up, as well; correct?

21

MR. ANTOLLINO: Objection.

22

A

No. I'm not going to go down

23 that road. I didn't cause anything. I'm not

24 the Workers' Comp Board. I'm not the New

25 York State Insurance Fund. I didn't cause

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2 anything that happened. Whether Ray took

3 action on that or not, that's in his head.

4 It's a possibility. That's all I can say

5 about it.

6

Q

But it's something that you

7 believe is a possibility?

8

A

It is a possibility. That's it.

9 Nothing beyond.

10

Q

And Ray knew you were gay each

11 of the three times he hired you; correct?

12

A

I think we covered that.

13

Again, back in 2001, I don't

14 specifically recall this seating if we talked

15 about it, but it was pretty clear in 2009

16 and 2010.

17

Q

Talk to me about this business

18 you share with your ex-husband in Texas.

19

A

Could you be a little more

20 specific; what would you like to know?

21

Q

What's the name of the business?

22

A

It's Advanced Skin Fitness.

23

Q

What is Advanced Skin Fitness?

24

A

It's a medical spa.

25

Q

What happens at the medical spa?

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2

A

We do a variety of anti-aging

3 procedures. We do laser hair removal, which

4 is the primary thing, we do facials, we do

5 laser skin resurfacing, and we do cellulite

6 reduction. We do hormone therapy. We do a

7 lot of things. I don't have the whole list

8 of all we do.

9

Q

Is it run by a doctor?

10

A

We have medical directors that

11 oversee the legal part of that part of the

12 operation.

13

Q

Is your ex-husband a medical

14 doctor?

15

A

He is not a medical doctor.

16

Q

Is he a doctor?

17

A

He is not a doctor. He has a

18 Master of Science in Exercise Physiology and

19 Kinesiology.

20

Q

Are you a doctor?

21

A

I am not.

22

Q

But you have doctors on your

23 board --

24

A

We do.

25

Q

-- to make everything kosher,

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2 for lack of a better term?

3

A

To make everything legal.

4

Q

Are you familiar with that term,

5 "kosher"?

6

A

I am.

7

Q

What's the name of this

8 business?

9

A

Well, it's Advanced Skin Fitness.

10 The incorporated name is Lush, L-U-S-H,

11 Investments Incorporated.

12

Q

Are you a partner in that

13 company?

14

A

Silent partner.

15

Q

What percentage of the business

16 do you own?

17

A

We don't have that broken down

18 like that. My ex and I started that

19 together, so for various reasons and legal

20 reasons, I don't have a legal holding.

21

Q

You don't have any legal

22 holding?

23

A

I don't have a legal holding.

24

Q

What is the reason for you not

25 having a legal holding?

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2

A

It's personal, primarily, and

3 partly strategic. In the event that while we

4 were together and we had started this and we

5 didn't make it, for whatever reason, we could

6 always start up under my name.

7

Q

What's the personal reason?

8

A

What is the personal reason?

9

Q

Yes.

10

A

Those are reasons related to our

11 relationship.

12

Q

I need to know for purposes of

13 this deposition. I'm not prying, but I do

14 need to know.

15

A

I don't have -- I can't recall

16 every personal thing that we've discussed

17 over this many years that we've had this

18 business, and we've been together in and out

19 of the personal relationship that we've been

20 in.

21

It's just the way we started it.

22 We started the business. I wrote the first

23 check. It was in an office about this

24 (indicating) size, and then we grew and just

25 moved forward, and some of it had to do with

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2 my willingness to relocate to Dallas from

3 Kansas City, and whether we were going to be

4 together that way or not. That was a little

5 bit of it.

6

I maintained a place up in

7 Kansas City, and obviously, to be more

8 involved in that would require me to fully

9 move to Dallas and be in Dallas. That's an

10 example of one of the personal things that I

11 meant.

12

Q

So you're a partner in this

13 business, you do work for this business, but

14 nowhere in the business's records are you

15 indicated to be a partner?

16

A

That's right.

17

Q

What percentage of the profits

18 of the business do you share in?

19

A

It works like this: If there is

20 any profit left over, then we may get paid.

21 That's pretty much the long and short of it.

22

Q

Is it a profitable business?

23

A

It has been. It has been

24 profitable. I mean, it depends on which

25 month you want to look at. It's up and down,

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2 especially during these turbulent times.

3 People aren't as focussed on spending money

4 on how they look and getting expensive

5 treatments done, so it's up and down. It's

6 difficult.

7

Q

In 2010, did the company make

8 any money?

9

A

I don't have the records in

10 front of me. I don't have the books in front

11 of me. I'd have to look to see what our

12 actual profit and loss -- to what our balance

13 sheet actually reflects, but I think we did

14 make some money. I think we were somewhere

15 in the black. We certainly weren't living

16 large or anything like that, but I think that

17 we were somewhere in the black.

18

I'd have to look back at the

19 records and see what capital purchases were

20 made to be able to tell. And 2010 -- you

21 said 2010, right?

22

Q

I did.

23

A

I'd have to look.

24

Q

Did you make any money from the

25 business in 2010?

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2

A

Did I make any money? No, I

3 didn't make any money from the business. I

4 received some, I guess, reimbursements from

5 the business.

6

Q

Did you get paid for the work

7 you performed for the business in 2010?

8

A

No, not yet. Maybe some day.

9 We both have -- I mean, the business owes us

10 a lot of money on the books, so maybe some

11 day, if we can keep going and get through

12 everything, get to a better place, maybe then

13 it will pay us back. I hope for all of our

14 hard work and the employees and the people

15 that work for us to get their paychecks.

16 Sometimes we don't get our paychecks.

17

Q

Did the business file an income

18 tax return in 2010?

19

A

Yes, it did.

20

Q

Did it file an income tax return

21 in 2009?

22

A

It did.

23

Q

And for all previous years that

24 it was in existence, did it file a tax

25 return?

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2

A

It did.

3

Q

Did you file an income tax

4 return for 2010?

5

A

2010, yes.

6

Q

Did you file an income tax

7 return for 2009?

8

A

It has not been filed yet.

9

Q

Why is that?

10

A

That was the year that I broke

11 my ankle, and I got behind, in part, because

12 of that. It was just a matter of logistics.

13 I had traveled, and I had a difficult time

14 with the whole situation; with my ankle being

15 broke and getting around, getting my records

16 together and school, and I just simply got

17 behind and didn't get to it.

18

Q

But were able to get your 2010

19 filed --

20

A

Yes.

21

Q

-- just not your 2009?

22

A

Right.

23

Q

Did you make more in 2010 than

24 you made in 2009?

25

A

I don't know, because I haven't

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2 done 2009 yet, so I'll find out. It's just a

3 matter of getting caught up on that.

4

Q

Now we're at the end of the year

5 in 2011; are we not?

6

A

We are.

7

Q

How did you do financially in 2011?

8

A

Not very good.

9

Q

Is that because you spent a fair

10 amount of time out of the country and on

11 vacation?

12

A

No, it's because I didn't take a

13 full-time job skydiving.

14

Q

And why didn't you take a

15 full-time job skydiving?

16

A

Because of this.

17

Q

Because of this lawsuit?

18

A

In part, because of this

19 lawsuit. Mostly because of the damages that

20 have been done to me because of what Ray did

21 when he fired me and accused me of something

22 I didn't do and how it's hurt me in the

23 industry.

24

Q

Isn't it the accusations of

25 Ms. Orelana and Mr. Kengle?

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2

A

We've been through this I think

3 about two or three times now, so...

4

Q

Well, Ray didn't accuse you of

5 doing anything. Ray just relayed to you the

6 accusations made by the customers; correct?

7

A

Ray accused me when he suspended

8 me and when he fired me.

9

Q

Well, specifically, what did he

10 accuse you of?

11

A

Well, we went over that. He

12 accused me of touching Ms. Orelana in a way

13 that made her feel uncomfortable at the hips.

14

Q

Did he say you touched Ms. Orelana

15 in a way that made her uncomfortable at the

16 hips, or did he say, I received a complaint

17 from a customer that said you touched her in

18 a way that made her uncomfortable at the

19 hips?

20

A

He said that I touched her --

21 well, let me think about that for a minute.

22 There has been more than one time that this

23 has been discussed, so I can't recall how he

24 said it right now.

25

Q

Because earlier today you said,

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2 (reading), he relayed to me that a customer

3 made a complaint that I made her feel

4 uncomfortable because I had touched her in

5 the hip area, and I disclosed my sexual

6 orientation to her.

7

A

Okay.

8

Q

That's what you said. That's

9 different than Ray accusing you of doing it.

10 That's Ray relaying to you that somebody else

11 was accusing you of doing it; correct?

12

A

I --

13

Q

I need you to answer that

14 question with a yes or a no.

15

A

No.

16

Q

No, that's not correct?

17

A

No.

18

Q

Okay, go ahead. What is it you

19 wanted to say?

20

A

The reason it's not correct is

21 because what I said earlier. Ray knows

22 better, so even if Ray is relaying that

23 information, and that information is

24 relatively new to this case and to us, as far

25 as I'm concerned, because I just got to hear

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2 that for the first time in November a month

3 ago, Ray knowing better, knowing that I

4 didn't do this, corroborated it and agreed

5 with it and took action against me, based

6 upon it, so that, to me, is the same thing as

7 him accusing me. It is the same thing.

8

Q

How does Ray know better that

9 you didn't make this woman feel

10 uncomfortable?

11

A

It's simple. Because Ray's been

12 doing tandems for three decades, jumping for

13 forty years. Ray knows me. He knows my

14 reputation. He knows my record. He knows

15 the situation that's involved in strapping

16 another passenger to you to take them on a

17 tandem. He knows what's involved with

18 strapping at the hips. He knows all of that.

19 He knows every part of that like the back of

20 his hand. He would be an expert in that, and

21 he knows that I did not do anything wrong.

22 Period.

23

Q

I don't know how he would know

24 if he wasn't there --

25

MR. ANTOLLINO: That's --

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2

Q

I do know that he received a

3 complaint --

4

MR. ANTOLLINO: We're not

5

arguing --

6

Q

-- and you're aware of that; is

7 that correct?

8

A

I'll agree with you that he

9 received a complaint.

10

Q

Talk to me about Marco Marcovitch

11 (phonetic). Do you know him?

12

A

I know Marco.

13

Q

Friend of yours?

14

A

I'm going to say he's a friend.

15 I'm not sure what our status of friendship is

16 right this second, though. He has been a

17 friend.

18

Q

Have you referred to yourself as

19 a fag?

20

A

I probably have.

21

Q

What kind of situations would

22 you have referred to yourself as a fag?

23

A

Probably would have been some

24 casual, loose situation.

25

Q

Did Ray Maynard ever refer to

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2 you as a fag?

3

A

You're asking me if he ever used

4 that word?

5

Q

Yes.

6

A

Not that I can recall at this

7 time in earshot of me.

8

Q

Did Marco Marcovitch ever refer

9 to you as a fag?

10

A

I think he has used the word in

11 a joking way somewhere along the line.

12

Q

Did you ever discuss with Marco

13 Marcovitch what you would do to him if he

14 were a homosexual?

15

A

What I would do to him?

16

Q

Yes.

17

A

Not that I can recall. No.

18 Could you break that question -- what do you

19 mean by what I would do to him?

20

Q

Sexually.

21

A

No, I don't recall ever

22 discussing it. Marco and I have never

23 discussed sexual relationships with each

24 other, so if you say something to the

25 contrary, I'd be interested to know what it

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2 is.

3

Q

Do you have comments posted on

4 your FaceBook site by Marco Marcovitch?

5

A

I did at one time. We have had

6 comments back and forth. They typically

7 involved joking and banter between each

8 other.

9

Q

Did that joking and banter ever

10 include sexual orientation?

11

A

I'm sure it did.

12

Q

Were you bothered by it?

13

A

Well, there was a lot of it, so

14 as a blanket statement, I can't answer to

15 that because I'd have to see the specific

16 comment as an example, but in general, no,

17 because I know Marco wouldn't have been

18 saying anything to me maliciously.

19

Q

You control what you post on

20 your FaceBook page; right?

21

A

You're asking me do I control

22 what I post?

23

Q

Yes.

24

A

Yes, I control what I post.

25

Q

Nothing is posted on your

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2 FaceBook page without you approving it;

3 correct?

4

MR. ANTOLLINO: Objection.

5

A

Incorrect.

6

Q

What's posted on your FaceBook

7 page without your approval?

8

A

FaceBook has the ability to be

9 able to allow people to post things on your

10 wall or in your forum or tag photos of you

11 without you having control over that, and

12 they still have that in place, even though

13 they've made improvements to their privacy

14 controls.

15

Sometimes those privacy controls

16 aren't pushed out to the community to make

17 you aware of them, and I'm still not even

18 aware of them today, of all of them, but you

19 are not always in control over what somebody

20 puts on your FaceBook page.

21

Q

If somebody put something on

22 your FaceBook page that you're unhappy with,

23 you can take it down; correct?

24

A

You could if you know about it

25 and if you saw it, if you got a notification.

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2 It's a living, breathing, electronic entity

3 and things come and go, and if you don't log

4 on to your FaceBook for a week, there could

5 be a week's worth of stuff that passed

6 through there that you don't even see.

7

Q

Tell me about the incident that

8 occurred at Fire Island where you picked up

9 some Brazilian boys.

10

A

Sounds like I had a good time,

11 but I don't recall it.

12

Q

You don't recall speaking to

13 some of your coworkers about picking up

14 Brazilian boys at Fire Island?

15

A

Brazilian boys at Fire Island.

16 No, I don't. I don't recall it.

17

Q

Is that something you would have

18 discussed at work had it happened?

19

A

It depends on whether somebody

20 would have asked me what I did this weekend

21 or not, or one of the times or the many times

22 Brian Petretti -- I don't why he kept

23 bringing it up -- hey, Don, did you go the

24 Grove this weekend? If he would ask me that,

25 maybe I would have responded with, no, I went

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2 to the Pines. That would be the context.

3 That would be the only context that I could

4 think of.

5

Q

Did you ever discuss taking

6 Viagra with your coworkers at Skydive Long

7 Island?

8

A

Did I ever discuss it?

9

Q

Yes.

10

MR. ANTOLLINO: I'll object to

11

the form.

12

A

I can't recall.

13

Q

You can't recall?

14

A

I can't recall having a

15 discussion about Viagra.

16

Q

Did you have discussion about

17 Viagra and Fire Island and a sex marathon?

18

A

No.

19

Q

You never had the discussion

20 with Curt Kellinger?

21

A

A sex marathon, no. Now that

22 you're bringing it up, it seems like that

23 Curt might have put something or made a

24 comment on a FaceBook post at some point, or

25 he might have said something like that, but

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2 not me.

3

Q

You never had a discussion with

4 Curt Kellinger about Viagra at Fire Island?

5

A

Not that I can recall. I mean,

6 he might have made a joke about something at

7 some point.

8

Q

Talk to me about pornography on

9 your cellphone.

10

A

Talk to you about pornography on

11 my cellphone?

12

Q

Yes.

13

A

What about it?

14

Q

Do you ever look at pornography

15 on your cellphone?

16

A

Define "pornography." What is

17 pornography to you?

18

Q

Do you ever look at pictures of

19 naked people on your cellphone?

20

A

I've had pictures of naked

21 people on my cellphone; yes.

22

Q

Did you ever look at pictures of

23 naked people on your cellphone while at

24 Skydive Long Island?

25

A

I suppose it's possible that if

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2 somebody sent me a picture or over lunch or

3 something on FaceBook or something came up on

4 my cellphone, that it's possible that

5 somebody saw it.

6

Q

Did John Campbell tell you to

7 stop looking at naked pictures on your

8 cellphone?

9

A

You know, I think he might have

10 made a joke at one point about something like

11 that, and that's Monkey, John Campbell. I

12 think he made a joke one time or something

13 like that, and I don't even know if I was

14 looking at naked pictures on my cellphone. I

15 think he might have been assuming that.

16

Q

Do you remember a time when a

17 coworker brought their child to work at

18 Skydive Long Island?

19

A

There's been several people that

20 have brought children to work.

21

Q

Do you remember complaining

22 about it?

23

A

I don't.

24

Q

Did you ever discuss at work at

25 Long Island Skydive oral sex?

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2

A

Did I ever discuss it?

3

Q

Yes.

4

A

No, I didn't discuss it.

5 People -- other employees they discussed

6 sexual things quite a bit, so I steered away

7 from making too many comments like that, so

8 when the conversation would turn in that

9 direction among my peers, I steered away from

10 it.

11

Those kind of things came up a

12 lot, and a lot of times, it could have been

13 straight related, or it could have been gay

14 related. Those things came up just among

15 peers, among staff in the video room.

16

I mean, if there was a girl with

17 big boobs on a jump that were bulging out of

18 her halter top, there'd be a rush, an influx

19 into the video room to hurry up and see the

20 video so they could look at the girl's boobs

21 spread apart in free fall. Ray participated

22 in that. In that setting, there would be

23 people that would make comments and jokes.

24 Who knows what was said?

25

Q

Did Marco Marcovitch ever lie to

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2 you?

3

A

Did Marco ever lie to me

4 about...

5

Q

Anything.

6

A

Well -- I can't think of

7 anything he lied to me about directly.

8

Q

Do you have any reason to

9 believe that Marco Marcovitch is not a

10 truthful person?

11

MR. ANTOLLINO: Objection.

12

Answer.

13

A

No, I don't think that I have

14 any reason to believe that he's a liar.

15

Q

Do you have any reason to --

16

A

I think that he's vulnerable.

17

Q

Do you have any reason to doubt

18 his propensity for truthfulness?

19

A

Yes.

20

Q

What is your reason for doubting

21 his propensity for truthfulness?

22

A

I just think that he's

23 vulnerable, because he's a young kid and he's

24 not experienced in a lot of areas with life,

25 and he's working in a very unique adult

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2 environment like it is at Skydive Long

3 Island. The kind of job that we're doing

4 there, the kind of responsibilities that we

5 have, and all those things that are going on

6 there. I just think he's vulnerable.

7

Q

Do you have any reason to doubt

8 Mr. Winstock's propensity for truthfulness?

9

A

I was concerned about it.

10

Q

What is your reason for doubting it?

11

A

Well, I was concerned about the

12 conflict of interest with his position at

13 Skydive Long Island and his position, which

14 is newly acquired with United States

15 Parachute Association, and his relationship

16 with Ray. I was concerned.

17

Q

Well, you heard him testify

18 yesterday. Do you think he testified

19 untruthful about anything?

20

MR. ANTOLLINO: Objection.

21

A

I feel better after hearing him

22 testify yesterday.

23

Q

That's a wonderful answer. It's

24 just not the answer to the question I asked

25 you.

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2

Do you believe that he testified

3 about anything untruthfully yesterday?

4

MR. ANTOLLINO: Objection.

5

A

Let me just think and recall for

6 a moment.

7

Q

Please.

8

A

I think that he may have been

9 factually incorrect on some of the things

10 that he said.

11

Q

And those things were?

12

A

Which would be different than

13 testifying --

14

MR. ANTOLLINO: Objection.

15

A

-- and that would be different

16 than testifying untruthfully.

17

Q

What were the things that you

18 thought he was factually incorrect about?

19

A

Just some --

20

MR. ANTOLLINO: Objection.

21

Asked and answered.

22

A

-- of the questions.

23

Q

I'm going to ask you to be as

24 specific as you can.

25

A

This was just yesterday, so it's

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2 a lot of information that was covered

3 yesterday.

4

Q

But you were taking notes, so

5 I'm sure you recall --

6

MR. ANTOLLINO: Objection.

7

Asked and answered.

8

A

What I was taking notes about

9 were questions to ask --

10

MR. ANTOLLINO: Don't discuss

11

what you were going to discuss with me.

12

A

That's what I was taking notes

13 about.

14

Q

Tell me what you think he was

15 factually inaccurate about.

16

MR. ANTOLLINO: Objection.

17

Calls for a narrative. Asked and

18

answered.

19

Q

You may disregard the comments

20 from your attorney.

21

MR. ANTOLLINO: Like all other

22

objections, unless I tell you not to

23

answer, go ahead.

24

Q

Feel free to disregard and

25 continue.

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2

A

Okay. Just some things that he

3 may not have remembered because through the

4 passage of time, such as, gay jokes, you

5 know, me being called Gay Don, things about

6 safety, the handle touches. Just some of

7 those kinds of things.

8

I don't think that he

9 maliciously said anything that was untrue or

10 that he lied. I just think that he may have

11 not remembered some of the facts at all or

12 maybe not remembered some of them 100 percent

13 clearly.

14

Q

How about Duncan Shaw; have you

15 ever had a reason to doubt Duncan Shaw's

16 propensity for truthfulness?

17

A

I have.

18

Q

What was that?

19

A

Same thing. Similar problem,

20 conflict of interest. And Duncan Shaw's

21 position is different than Rich's. He's not

22 a chief instructor, but he is a longtime

23 employee of Ray's. He's worked there for

24 awhile. He's had run-ins with Ray. In and

25 out. He's been in and out of employment with

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2 Ray, and like many of the people that work

3 there, they're under Ray's thumb, so they all

4 work for him, and so I feel that -- and

5 they're all participants, they all

6 participated in this joking, this gay banter,

7 this gay fun. They all participated, so

8 they're all culpable to some extent in this,

9 and yet we're in a situation where they all

10 still work for Ray and they're under Ray's

11 thumb, and Ray can hang their jobs over them.

12

Q

Right. But I asked you to

13 identify this gay banter, and you were unable

14 to identify it.

15

A

When was I unable -- I don't

16 remember being unable --

17

Q

I asked you to tell me about any

18 of the gay banter that was made, and you were

19 unable to state what was said and when it was

20 said. If you've thought of something, please

21 enlighten me now.

22

What was this gay banter?

23

A

Well, I think Rich just nailed

24 it right on the head; easy with Gay Don. I

25 mean, that's my name, Gay Don. Everybody

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2 said it all the time. I mean, it's pretty

3 clear. You start there with that and that

4 just leads into other things.

5

Q

What other things?

6

A

Well, even Rich couldn't

7 remember all the jokes. It's just so much.

8

Q

I know. I'm not asking Rich.

9 I'm asking you. What were the jokes?

10

A

I can't remember all the jokes

11 at this seating.

12

Q

Can you remember some of them?

13

A

Well, let me just sit here and

14 think about it for a moment.

15

Without remembering specifically

16 who said things like this, there were times

17 when there might be guys that were muscular

18 or attractive or gay looking that were

19 customers that were around, and some of the

20 other employees would say, how about him,

21 Don? He looks like your type. What do you

22 think about him? Stuff like that.

23

Q

Do you recall who said that to

24 you?

25

A

It happened frequently. I do

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2 recall, and I won't be able to tell you the

3 dates and times because that would just be

4 impossible for me to recall, but one of the

5 persons that did that all the time was

6 Brian Petretti.

7

Q

Do you remember the year in

8 which it occurred?

9

A

That occurred in 2001, '09, and '10.

10

Q

When in 2010 did it occur?

11

A

During the time I was working

12 there, so before I was fired.

13

Q

Do you remember the day?

14

A

No.

15

Q

Do you remember the month?

16

A

It would have been in June or

17 July; possibly May. I guess it would have

18 been June and May in 2010, because those are

19 the only two months I worked there.

20

Q

That happened in 2010 --

21

A

Yes.

22

Q

-- with Brian Petretti?

23

A

Yes.

24

Q

Did he say it maliciously?

25

A

Brian --

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2

Q

Yes or no?

3

MR. ANTOLLINO: Let him answer

4

the question.

5

Q

Yes or no, Don?

6

A

No, I don't think it was

7 malicious.

8

Q

Do you have any reason to doubt

9 Curt Kellinger's propensity for truthfulness?

10

A

Curt is a straight-shooter. I

11 think of everybody, I would feel most

12 comfortable with him.

13

Q

What about Michael Goki (phonetic)?

14

A

I don't really know him that

15 well.

16

Q

Did Michael Goki ever lie to you

17 while you were employed at Skydive Long

18 Island?

19

A

I can't recall Mike lying to me

20 about anything. I don't even really know him

21 that well. He was the rigger, and he was

22 there part-time. Technically, a full-timer

23 there, but he wasn't out there full-time.

24

Q

Did Curt Kellinger ever lie to

25 you while you were employed at Skydive Long

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2 Island?

3

A

Not that I recall.

4

Q

Did John Campbell ever lie to

5 you while you were employed at Skydive Long

6 Island?

7

A

Not that I can recall at this

8 moment.

9

Q

Did Duncan Shaw ever lie to you

10 while you were working at Skydive Long

11 Island?

12

A

Not that I can recall at this

13 time.

14

Q

Did Rich Winstock ever lie to

15 you while you were working at Skydive Long

16 Island?

17

A

Not that I can recall at this

18 time. I don't have any evidence or proof.

19

Q

Did Ray Maynard ever lie to you

20 while you were working at Skydive Long

21 Island?

22

A

Yes.

23

Q

What did he lie to you about?

24

A

He lied about me touching this

25 passenger inappropriately at the hips.

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2

Q

Is that the only thing he lied

3 about?

4

A

He lied about there being video

5 of the jump. There was video of the jump.

6

Q

Did he ever tell you there was

7 no video of the jump?

8

A

At one point -- at one point, he

9 cast doubt on whether there was video.

10

Q

So he never told you there was

11 no video of the jump; is that correct?

12

A

I can't remember him directly

13 saying there was no video. I'm trying to

14 remember around the time, a week later when

15 he terminated me, or not if it came up after

16 the termination, because I still wanted to

17 see those videos, so that's why I'm trying to

18 remember if it came up then or not, again,

19 because I asked about the videos after the

20 termination.

21

Q

In fact, he never accused you of

22 touching this woman inappropriately. He

23 relayed to you her complaint or her

24 boyfriend's complaint that you touched her

25 inappropriately; correct?

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2

A

We've been through this --

3

Q

Right.

4

A

-- so I'm going to state it

5 again.

6

Q

Please do.

7

A

Okay, so I think we'll have this

8 on the record four or five times now.

9

MR. ANTOLLINO: Yes. Objection

10

to the fact that it's been asked many

11

times.

12

Q

Thank you for reminding him.

13

A

Good, so --

14

Q

I know it probably bothers him

15 more than --

16

MR. ANTOLLINO: Actually, we

17

were doing fine, but if you want to use

18

your seven hours asking things again,

19

you can do that.

20

MR. ZABELL: I'm aware of what I

21

can and can't do, Counselor. Thank

22

you, though.

23

A

Since I've answered this so many

24 times, I'm going to try to make it even a

25 little bit more condensed, in that Ray's

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2 corroboration of that ridiculous complaint is

3 accusing me of it because he knows better.

4 Simple as that. It's just that simple.

5

Q

How did Ray corroborate that

6 event?

7

A

The accusation?

8

Q

Yes.

9

A

Because he went along with it.

10 He didn't investigate it. He didn't let me

11 see the video. He didn't ask anybody else in

12 the plane. He didn't check this out. He

13 just acted on the customer's complaint

14 immediately, didn't check anything out, so he

15 just owned it.

16

Q

And that's how he lied to you?

17

A

It's a lie because he knows that

18 Don Zarda did not touch the customer in a way

19 that was inappropriate whatsoever. He knows

20 that.

21

Q

How does he know that?

22

A

Because he has the experience in

23 the industry, in the sport, as an instructor,

24 and he knows me for ten years now. He knows

25 my record, he knows my reputation, and he

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2 knows better. Simple.

3

Q

And you think he just fired you

4 because you were gay and because you drove

5 his Workers' Comp premiums up?

6

MR. ANTOLLINO: Objection.

7

A

No, no. I said earlier when you

8 asked me that if that was a possibly that the

9 Workers' Comp. was an issue, and I said that

10 it's a possibility.

11

Q

Is it also a possibility that it

12 was because you were gay?

13

A

Yes, absolutely.

14

Q

Which do you think is more

15 probable?

16

A

That I'm gay.

17

Q

You think so?

18

A

I think that's bigger.

19

Q

Do you have an opinion one way

20 or the other as to the reason why you were

21 terminated; is it because you were gay, or is

22 it because of the Workers' Comp premium --

23

MR. ANTOLLINO: Objection.

24

Q

-- in your mind?

25

A

It's clearly going to be the gay

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2 issue.

3

Q

As you sit here today, you

4 believe you were terminated 100 percent

5 because you are gay?

6

A

I didn't say 100 percent. You

7 said 100 percent.

8

Q

What percentage would you say --

9

MR. ANTOLLINO: Objection.

10

Q

-- the likelihood is that you

11 were terminated because you're gay?

12

MR. ANTOLLINO: Objection.

13

A

Statistically speaking, I

14 suppose if you were to crunch the numbers, if

15 there's a possibility of another reason, then

16 this reason over here can't be 100 percent,

17 so where in there is it; one percent, two

18 percent, three percent? I don't know. I'm

19 not in Ray's head, so I can't answer that.

20

The question was: Is it

21 possible that Ray could have fired me, in

22 part, for the Workers' Comp situation? Yes,

23 it's possible. How much of that weighed on

24 him when he made the decision to fire me for

25 being gay, I don't know. I wasn't in Ray's

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2 head, so I can't answer that.

3

Q

Do you believe that it could

4 have only been one of those two reasons?

5

MR. ANTOLLINO: Objection.

6

Q

You may answer.

7

A

Do I believe -- can you repeat

8 that?

9

Q

Do you believe, as you sit here

10 today, that your termination was either the

11 result of you being gay or the result of you

12 driving up his Workers' Comp policy?

13

MR. ANTOLLINO: Objection.

14

A

I'm going to say this once more.

15 I didn't do anything to drive up his Workers'

16 Comp policy.

17

Q

Well, his belief that you drove

18 up his Workers' Comp policy.

19

A

I still don't think that I can

20 say that is even his belief because that's

21 something that is not in my control, nor his

22 control, so I can't state to what his belief

23 is about me driving up his Workers' Comp

24 that as being a factor in whether or not he

25 wanted to let me go or not, could have been a

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2 little part of it, but I think the bigger

3 piece, the much bigger piece, the

4 dramatically larger piece of it had to do

5 with me being gay.

6

MR. ANTOLLINO: Off the record

7

for one moment, if you don't mind.

8

MR. ZABELL: Are we talking

9

about scheduling?

10

MR. ANTOLLINO: Yes.

11

MR. ZABELL: Sure.

12

(Whereupon, a discussion was

13

held off the record.)

14

Q

The dramatically large piece of

15 your termination had to do with your being

16 gay.

17

What, if any, do you believe

18 could have been the other factors?

19

MR. ANTOLLINO: Objection.

20

Asked and answered.

21

A

Well, we've been down this path,

22 but to go briefly again, the accusation of

23 the inappropriate touching was in the mix and

24 the issue of me being gay.

25

Q

And?

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2

A

The slight possibility that it

3 had to do with the Workers' Comp situation,

4 for which neither Ray nor me has any control

5 over because Ray doesn't work for the New

6 York State Insurance Fund or the Workers'

7 Comp Board and neither do I.

8

Q

Are you finished with your

9 answer?

10

A

I am.

11

Q

Anything else you want to add?

12

MR. ANTOLLINO: Objection.

13

A

To that question?

14

Q

Yes.

15

A

No, I think I answered it a lot.

16

Q

Okay. Talk to me about

17 Lauren Callanan; what do you know about her?

18

A

She is the manifester, the

19 primary manifester for the office, and I

20 don't know if she has an official title as an

21 office manager, but she certainly takes on

22 that role.

23

Q

Nice person?

24

A

She appears to be.

25

Q

She ever lie to you?

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2

A

Let me think about that for a

3 minute.

4

Q

You do that.

5

A

I can't think of a specific time

6 where she would have just flat out said an

7 untruth to me directly. Given that she was

8 participating, however, in my termination, to

9 me, might make her culpable in that, in the

10 act of possibly committing an untruth in that

11 situation.

12

Q

But as you sit here right now,

13 do you have any reason to believe that she

14 lied?

15

A

I do have reason to believe -- I

16 do have a little bit of reason to believe. I

17 just can't prove that.

18

Q

We all need a reason to believe.

19

A

Yeah, well.

20

Q

What is your reason to believe

21 that she lied?

22

A

My reason would be because she

23 was sitting there with Ray and me when I was

24 terminated, for whatever reason, whether it

25 was for Ray to have a witness or whatnot, and

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2 for her to be there, I can't imagine her

3 believing this to be true, the reason I was

4 being fired, so that would make me feel like

5 that she could be culpable of lying by

6 corroborating with Ray, the reason Ray was

7 firing me for.

8

I guess it would be like this:

9 Lauren, do you really believe that this

10 happened? That would be my question if I had

11 to ask her, and she would have to say yes or

12 no, and depending on that would, I guess,

13 determine whether or not she was lying. I

14 can't imagine --

15

MR. ANTOLLINO: All right.

16

That's the answer.

17

MR. ZABELL: Counselor, if your

18

client is speaking and he's halfway

19

through his answer, you do not get to

20

say, all right, that's enough.

21

MR. ANTOLLINO: Yes, I

22

apologize.

23

Q

You said "I can't imagine."

24

Please tell me what you can't

25 imagine with regard to that question, and

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2 disregard your attorney telling you, okay,

3 that's enough.

4

A

I can't imagine her believing

5 that.

6

Q

Can't believe that a customer

7 complained about you or believing that the

8 actual complaint was accurate?

9

A

Believing that I did anything

10 wrong like that.

11

Q

What months in the year 2001 did

12 you work for Skydive Long Island?

13

A

I'll just have to give you an

14 approximate on that. It could have been the

15 months in June, July, August, and very early

16 September.

17

Q

Would that have been the same

18 for 2009?

19

A

No. 2009 would have been the

20 months of May, June, and the first part of

21 July.

22

Q

What about 2010?

23

A

Those would have been the months

24 of May and June.

25

Q

And typically, if you were given

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2 the opportunity, would you have worked for

3 Mr. Maynard year round?

4

A

It was a seasonal arrangement.

5 It was a seasonal engagement to come to work

6 there.

7

Q

What makes it seasonal?

8

A

In part, the weather and the

9 nature of the activity, and the location of

10 Mr. Maynard's drop zone is in that place

11 mentioned. I think Rich told you, the season

12 was from March to November, and that's for

13 the locals. So what I mean by that is, Rich

14 lives in this area and so do some of the

15 other employees, so they stay all year, and

16 they're able to work a little bit longer

17 outside in the busy season where instructors

18 like me come from other parts -- they're able

19 to work a little bit longer on either end of

20 the season because they live here versus

21 instructors get hired in from other parts of

22 the country. We come for the busy part.

23

Q

And you understand that

24 skydiving on Long Island is a seasonal

25 business; correct?

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2

A

It can be a seasonal business.

3 Technically speaking, skydiving can take

4 place 365 days a year, seven days a week, if

5 you have the weather. If the planets

6 rearrange themselves and it got to be nice

7 weather in December, they -- I wouldn't be

8 surprised if in the coming weekends, even

9 this month, if they aren't doing tandems at

10 Skydive Long Island on the weekend.

11

Q

Would you work on rainy days?

12

A

Would I work on a -- you're

13 asking me --

14

Q

On a rainy day, yes.

15

A

If I would or did?

16

Q

If you would.

17

A

If I would work on a rainy day?

18

Q

Yes.

19

A

Could you be more specific; in

20 what way would I work?

21

Q

Would you actually jump out of

22 planes in the rain?

23

A

We're not allowed to do that.

24

Q

So on rainy days, you can't jump

25 from planes?

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2

A

You can't jump from planes while

3 it's raining, during the part of the day that

4 it's raining.

5

Q

What other restrictions are

6 there on when you can jump from a plane?

7

A

Legally, as far as conditions?

8

Q

Yes.

9

A

Legally, the sky must be clear,

10 you must have visibility of three statute

11 miles, you must be 500 feet below clouds,

12 there must be 1,000 feet above the clouds,

13 and 2,000 feet separation from the clouds to

14 be able to jump. If you don't have that kind

15 of visibility -- that's off the top of my

16 head. The FARs, but it's relatively close.

17

Q

And that was enforced at Skydive

18 Long Island; correct?

19

A

Not all the time.

20

Q

No; there were times where you

21 would break the law and dive?

22

A

Yes.

23

Q

Why would you do that?

24

A

Because the pilot was willing to

25 fly the aircraft, and Ray was willing to have

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2 us do jumps in those conditions.

3

Q

And you were willing to jump in

4 those conditions?

5

A

Willing or -- I was willing to

6 jump. Pressured to jump, I think, would

7 probably be a better way to put it.

8

Q

You had the right to refuse a

9 jump; did you not?

10

A

You could. If you did and you

11 were the only one, then that would possibly

12 raise concern or draw attention to why you

13 would not be jumping when these other people

14 who have a vested interest in making as much

15 money as they possibly can are jumping, so

16 there's that paradox.

17

Q

What's the paradox?

18

A

Everybody else must think it's

19 okay to jump, so therefore, I should jump

20 too, even if it's illegal. That's the

21 paradox.

22

Q

Did you ever complain about

23 being forced to jump illegally?

24

A

In this industry, if you

25 complain about things too much, illegal or

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2 not, then you may lose your job.

3

Q

That's a wonderful answer. It's

4 just not the answer to the question I asked

5 you.

6

A

Okay.

7

Q

Did you complain about being

8 forced to jump illegally?

9

A

No.

10

Q

If you wanted to complain, who

11 would you complain to?

12

A

The only person I would have

13 felt comfortable with making a complaint

14 about conditions and not jumping would have

15 been Rich, himself, and if Rich wasn't there,

16 I would probably conferred next with Duncan,

17 Duncan Shaw.

18

Generally, either one of those

19 two people would be there. Collectively how

20 it would work is, if it's really crappy

21 conditions and we're talking borderline

22 dangerous, it would get to a point where the

23 herd of staff would collectively stand down.

24 Sometimes that call had to be made by

25 somebody. Oftentimes, it was not Ray. Many

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2 times it was Rich. Sometimes it would be the

3 pilot. Everybody has a different role in

4 this.

5

The pilot could refuse not to

6 fly if the conditions aren't good enough, so

7 then if the pilot doesn't fly, then,

8 obviously, the jumpers can't make the

9 decision not to jump.

10

Q

Did you maintain a schedule of

11 your hours worked in 2009?

12

A

A written schedule, no.

13

Q

Did you maintain a schedule of

14 your hours worked in 2010?

15

A

No. We were expected to show up

16 at work at a specific time, and that time was

17 given to us either the prior day, we'd look

18 at the schedule, see what tandems were coming

19 in, and we were expected to stay until the

20 work was complete, no matter how long that

21 was or until we were dismissed, if we were

22 ever dismissed.

23

Q

Sometimes you would never be

24 dismissed; right?

25

A

Sometimes you wouldn't.

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2

Q

And you would sleep there when

3 you weren't dismissed; correct?

4

A

You're just waiting. You could

5 be using the computer or you could do

6 nothing, or if there was something -- there

7 was various things you could do. If you

8 needed to pack your parachute or something, I

9 suppose you could do that.

10

Q

You could also drive off site

11 and just when they call you back, return;

12 correct?

13

A

Sometimes they would let you do

14 that, but not all the time.

15

Q

You had a cellphone when you

16 worked in 2009 and 2010; correct?

17

A

Yes.

18

Q

What was your cellphone number?

19

A

Same as it is now.

20

Q

Which is?

21

A

(901)569-5860.

22

Q

And that was known to Skydive

23 Long Island; correct?

24

A

Yes, of course.

25

Q

And they could always call you

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2 on your cellphone; correct?

3

A

Yes, they could.

4

Q

And, you know, there were times

5 during bad weather where you'd leave and go

6 run some errands and maybe stop back, but if

7 the skies opened up and it got more rainy,

8 you would just go home; correct?

9

A

No. Typically, for me, once I

10 made the trip out there, I would stay from

11 where I had come from, so I can't think of

12 specifics, but there were not very many times

13 that I would go run errands, because there's

14 not too many things that you can do out

15 there, where you could run errands, other

16 than go get something to eat and come back.

17 So for me, that doesn't work.

18

For some of the other people

19 that live out there, have full-time homes and

20 stuff, they could kind of come and go and do

21 stuff like that, but it didn't really work

22 out for me that way.

23

Q

That's just because you lived a

24 little bit of a distance away?

25

A

It was a little bit of a

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2 distance; yeah.

3

Q

It was just less convenient for

4 you; correct?

5

A

Yeah. It would have been kind

6 of ridiculous to drive all the back to Coram

7 and then come all the way back to that area.

8

Q

Did you ever meet any of the

9 customers of Skydive Long Island afterwards,

10 after a jump?

11

A

Did I ever meet -- be more

12 specific about "after a jump." Are we

13 talking the same day, like after they just

14 made their jump and they were hanging out?

15

Q

No. Did you ever make an

16 acquaintance with a customer and then meet up

17 with them at some later date?

18

A

I made some acquaintances, but I

19 haven't met up with them. I made a couple of

20 acquaintances on FaceBook, one that I could

21 think of. I haven't seen him since. I mean,

22 we're still FaceBook friends.

23

Q

Did you ever date any of the

24 customers you met at Skydive Long Island?

25

A

No, I never have.

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2

Q

Did you ever try?

3

A

Nope.

4

Q

Now, what was your expected work

5 schedule in 2009 at Skydive Long Island?

6

A

Are you asking me what dates I

7 was expected to be there?

8

Q

What days of the week were you

9 expected to work?

10

A

It's a seven-day-a-week operation.

11

Q

I know it's a seven-day-a-week

12 operation --

13

A

You're expected to work seven

14 days a week if the weather is good.

15

Q

How did you happen to spend

16 weekends over at Fire Island if you were

17 working seven days a week?

18

A

I didn't spend any full weekends

19 over at Fire Island, unless it was completely

20 crappy weather and we were dismissed from

21 jumping and we were not jumping, period, or

22 we were allowed to go home or any of those

23 scenarios, if they occurred. I didn't spend

24 weekends over at Fire Island.

25

Q

Really? Because you testified

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2 before that in response to questions of, hey,

3 Don, what did you do this weekend, you would

4 share with people that you went to Fire

5 Island or you went to the Pines, or something

6 else.

7

A

Yup. You can very easily get a

8 ride on down to Sayville, get on the ferry,

9 and come right back. Coram is fifteen

10 minutes from Sayville. I did it several

11 times. Come back and go to work, so I didn't

12 spend weekends on Fire Island.

13

Q

Did you spend evenings there?

14

A

If there was time to make it

15 over there. It just depends on the schedule.

16 If there was a way to go over there and come

17 back, then, yeah.

18

Q

So some days your schedule would

19 permit it and some days your schedule

20 wouldn't; is that correct?

21

A

The schedule never permitted to

22 go spend a weekend on Fire Island. It did

23 not permit that, and I did not spend any

24 weekends on Fire Island because of that. If

25 the situation warranted or the conditions

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2 permitted you to be able to go to Fire Island

3 for any amount of time, then I may have gone,

4 and I did go on some occasions.

5

Q

In 2009?

6

A

Yes.

7

Q

And in 2010?

8

A

Yes.

9

Q

How many occasions in 2010 did

10 you go to Fire Island?

11

A

I can't recall a specific number

12 of occasions. There's no way of me to tell

13 you that.

14

Q

More than one?

15

A

Oh, yes, more than one.

16

Q

More than two?

17

A

I'm pretty sure it was more than

18 two.

19

Q

More than three?

20

A

I would say so.

21

Q

More than four?

22

A

Would say that it was -- we're

23 talking about 2010?

24

Q

Yes.

25

A

I'd say it was less than ten

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2 times total.

3

Q

Some amount between six and ten?

4

A

Somewhere around there, yeah. I

5 think that's fair to say.

6

Q

What about 2009?

7

A

2009, less. I'd probably say it

8 could be four to five times.

9

Q

Four to five times?

10

A

I managed to make it over there,

11 despite the injury, a couple of times, so

12 yeah, probably about that.

13

Q

Fire Island wasn't the only

14 place you socialized on Long Island; is it?

15

A

Well, there was the drop zone,

16 and then -- 2009?

17

Q

2009 or 2010.

18

A

2009, I can't think of going

19 anywhere else to socialize. 2010 on Long

20 Island, I can't think of anywhere else I went

21 to socialize.

22

Q

Did you ever go to any clubs in

23 Sayville?

24

A

No, never been to any clubs in

25 Sayville.

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2

Q

Did you ever enjoy any of Long

3 Island's fine restaurants, fine dining

4 establishments?

5

A

I mean, I eat out a lot, so

6 can't say as to what all restaurants I went

7 to. I think in 2010, I might have gone to a

8 restaurant -- I did go to a restaurant. I

9 just can't remember which one it was, in

10 Port Jeff Station right around the corner

11 from the condo. That was nice. I don't

12 remember which one it was.

13

Q

Did you ever have occasion to go

14 into New York City --

15

A

Yes.

16

Q

-- when you worked in 2009

17 and 2010?

18

A

Yes.

19

Q

When would you go into the City?

20

A

Whenever time permitted.

21

Q

How much time would you need to

22 get into the City?

23

A

That was always a toughy. If we

24 were busy working and we had to be at work

25 the next morning, depending on what time we

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2 got released from work or the last jump was

3 would dictate on whether or not we could get

4 down to Ronkonkoma, hop the train, get to the

5 City and come back, so I did that a few

6 times.

7

Q

In 2009, how many times did you

8 do that?

9

A

Did I ever go to New York from

10 Coram; is that what you're asking?

11

Q

Did you ever go to New York City

12 while you were working in 2009?

13

A

A couple of times.

14

Q

Three or four?

15

A

I don't know if it was three or

16 four, because I got hurt pretty early on, so

17 we were busy, and that was during the long

18 daylight hours, but I know I went at least

19 once, probably twice.

20

Q

How about 2010?

21

A

Same thing, because the only

22 thing different is that I was hurt in a

23 different way in 2010. I was fired, but it

24 was about the same amount of time.

25

Q

If it was a long daylight day,

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2 as I believe you said --

3

A

Yes.

4

Q

-- what does that mean?

5

A

Well, in the summer solstice,

6 the days are the longest. Skydiving goes on

7 typically all way until one half hour before

8 sunset. As the sunset gets longer and longer

9 in the summer, then so does the workday.

10

Q

What is the longest day in the

11 summer?

12

A

June 20.

13

Q

From that point, it gets --

14

A

It starts getting slowly

15 shorter.

16

Q

If there's more sunlight, does

17 that mean you can perform more jumps in a

18 day?

19

A

It does.

20

Q

What was the most amount of

21 jumps that you had done in a day?

22

A

Eighteen.

23

Q

How much do you get, roughly,

24 for each jump?

25

A

$40.

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2

Q

And that's the amount that you

3 agreed upon; correct?

4

A

Right.

5

Q

On a piecemeal basis, once your

6 jump is completed, that's what you get paid;

7 is that correct?

8

A

Right.

9

Q

Sometimes you get paid more than

10 $40; right?

11

A

As Rich was kind of explaining,

12 because the breakdown is kind of complicated

13 and depending on the kind of jump, so if it

14 was a training jump, training tandem versus

15 just a joyride, then there was a slightly

16 different schedule for that, and I don't

17 recall right off the top of my head how much

18 it was, because the majority of the jumps

19 that take place at Skydive Long Island are

20 passenger joyrides. They're not training

21 jumps, so I don't have it off the top of my

22 head.

23

There were times that if you

24 were doing a different kind of jump, you got

25 paid a different amount.

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2

Q

Did you keep track of how many

3 jumps you did in 2009?

4

A

The computer kept track of it.

5 My altimeter has it. I'm not sure if we

6 provided that to you or not. It's in my

7 altimeter. It's on my computer.

8

Q

What does that mean, it's in

9 your altimeter, it's on your computer?

10

A

Well, the old standard way of

11 logging jumps, and some people still use it,

12 some people half-and-half it, is an actual

13 logbook, like this (indicating) spiral bound.

14 You write down the jump number and what you

15 do. Many professional jumpers don't do that

16 anymore because we're just doing so many

17 jumps, and they're all just the same thing,

18 and we have altimeters that electronically

19 record the jump.

20

Q

Would that electronically record

21 a fun jump for you?

22

A

Yes, it would.

23

Q

Would it distinguish it as a fun

24 jump?

25

A

It doesn't, but when you

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2 download the jumps into your software program

3 on your computer, then you can go in and say,

4 dive type or type of jump it is, and also

5 typically, if you just forgot and you wanted

6 to look, you can tell what kind of jump it is

7 because you could look at the free fall time,

8 free fall speeds and opening altitudes that

9 the altimeter records, so it would really be

10 obvious that a tandem wasn't a fun jump and

11 you opened at 2,000 feet. That's really a

12 no-brainer.

13

Q

Now, Mr. Winstock said yesterday

14 when he was critiquing one of your jumps that

15 he thought you were waiting too long to throw

16 your drogue out.

17

A

Just his opinion.

18

Q

Well, it's his opinion that

19 counts; isn't it?

20

A

It counts for what?

21

Q

He gets to review your jumps to

22 determine that you're jumping appropriately;

23 correct?

24

A

No. There wasn't a review

25 process. I think that was just some

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2 skydiving comradery. No. So no, there was

3 not performance reviews. There was not

4 performance evaluations.

5

Q

In a tandem jump, how long are

6 you supposed to wait before throwing out your

7 drogue?

8

A

Three to five seconds, or until

9 stability is achieved and when the instructor

10 deems it appropriate to be able to safely

11 deploy the drogue chute.

12

Q

Why do you not want to wait too

13 long to deploy your drogue chute?

14

A

Well, because it could get

15 entangled with the tail of the aircraft. It

16 could get entangled with you. It can get

17 entangled with the passenger; any of the

18 those things. So you need to deploy the

19 drogue whenever the time is correct that you

20 have achieved stability and that you have

21 control and that it's safe to do so.

22

Q

Right. And you don't want to

23 throw your drogue out after -- the whole

24 purpose of your drogue is to slow you down so

25 you're not hitting terminal velocity;

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2 correct?

3

A

It's just to keep the tandem

4 pair falling at the same speed, roughly, that

5 a solo jumper would fall.

6

Q

And isn't it also to lessen the

7 impact of the initial shoot opening, as well?

8

A

It is also for that.

9

Q

Because that would put a lot of

10 stress on you; wouldn't it?

11

A

It does, yes. It does also

12 serve that purpose.

13

Q

So that's why you want to open

14 it in that three to five seconds?

15

A

Three to five seconds is very

16 arbitrary. It could be seven.

17

Q

Really? Because I thought at

18 twelve seconds, you hit terminal velocity.

19

A

Actually, at nine seconds you

20 do.

21

Q

Oh, you do? Then it makes sense

22 you're going to want to do it at three to

23 five as opposed to eight because you don't

24 want to hit terminal velocity; right?

25

A

No, no. It's okay to wait, you

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2 know, up to seven seconds. It's fine.

3

Q

Did Rich indicate that you did

4 it in about twelve seconds?

5

A

We didn't look at the video

6 again, because I don't think there was

7 twelve seconds there.

8

Q

Because there was time for you

9 wave before you did it; correct?

10

A

Oh, there's time to give the

11 peace sign. There's time to do a couple of

12 flips. There's time to wave. There's time

13 to do all of that.

14

Q

Do you flip while there is

15 somebody strapped to you?

16

A

I have.

17

Q

Is it recommended?

18

A

Technically, it is not allowed.

19

And that reminds me of the

20 initial complaint in 2001 of that passenger

21 where I mentioned that there was something

22 that that passenger wanted me to do that I

23 wouldn't do, that just happens to be exactly

24 what it was. It was flips out of the

25 airplane.

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2

Q

Which you've done before?

3

A

Every instructor has done it.

4

Q

But you're not allowed to do it?

5

A

Technically, you're not allowed

6 to do it.

7

Q

But you've done it.

8

A

And everybody does.

9

Q

So if everybody does it, then it

10 makes it all right; correct?

11

A

It depends. It depends on if

12 the manufacturers are wanting to enforce that

13 or not, and during the period of time in 2001

14 when that came up, it was under very extreme

15 scrutiny at that point, and it was being

16 enforced, and there were consequences if you

17 were caught doing it.

18

Q

What were the consequences?

19

A

You could have your license

20 revoked.

21

Q

And that's actually any time if

22 you're caught doing it, you could have your

23 license revoked; correct?

24

A

It is, but I've not heard of

25 that happening in years.

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2

Q

So you've escaped detection in

3 years?

4

A

Everybody has escaped detection

5 in years, even though it's broadcast on

6 YouTube thousands of times. Instructors

7 doing flips and barrel rolls with tandem

8 passengers, and somehow there still manages

9 to be licensed instructors in the country

10 doing tandems. It's a great thing.

11

Q

You agreed specifically to get

12 paid on the per jump basis; did you not?

13

A

That is correct.

14

Q

And you were paid on a per jump

15 basis; correct?

16

A

Yes.

17

Q

And you were paid what you had

18 agreed to be paid; correct?

19

A

Except for the jumps that Ray

20 withheld from my paycheck.

21

Q

But then he gave them back to

22 you; right?

23

A

(No verbal response.)

24

Q

You testified that he did.

25

A

He stole the TV, and then he

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2 returned it.

3

Q

You got paid everything that you

4 were agreed to be paid; correct?

5

A

Yup.

6

Q

Did you ever collect any Social

7 Services payments in 2009 or 2010?

8

MR. ANTOLLINO: Objection to

9

form.

10

A

Define "Social Services" to me.

11

Q

Anything from welfare to

12 unemployment benefits to Workers' Compensation

13 Benefits.

14

A

I received Workers' Compensation

15 benefits.

16

Q

When?

17

A

That was in 2009.

18

Q

Did you ever receive

19 unemployment benefits?

20

A

Not in 2009.

21

Q

Did you receive unemployment

22 benefits in 2010?

23

A

Yes.

24

Q

From what state did you receive

25 unemployment benefits?

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2

A

New York.

3

Q

I assume you applied for

4 unemployment benefits; correct?

5

A

I did.

6

Q

Did you indicate on your

7 application for unemployment benefits that

8 you were a partner in a business?

9

A

I would have to see the form. I

10 doubt it, because I'm a silent partner, and I

11 don't have any legal standing with the

12 business whatsoever, and I don't have

13 anything there, so I doubt it.

14

Q

But you do receive income from

15 the business when the business has income;

16 correct?

17

A

When the business is able to pay

18 for what it owes me for work that's been done

19 years ago, then we get some money.

20

Q

And in 2010, you actually did

21 work for the business; correct?

22

A

I haven't been paid for that

23 work.

24

Q

But you did work; right?

25

A

In 2010, I did some things here

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2 and there.

3

Q

What did you do for the company

4 in 2010?

5

A

In 2010, I was gone a lot, so

6 just IT stuff.

7

Q

Do you recall what period of

8 time to what period of time you did IT stuff?

9

A

It would have been before I

10 went.

11

Q

It would have been what?

12

A

It would have been before I went

13 to leave for the season to go to Skydive Long

14 Island.

15

Q

Well, didn't you testify before

16 that you also worked there after you left

17 Skydive Long Island?

18

A

You're talking about '10; right?

19

Q

Yes.

20

A

I think that -- I think that you

21 were talking about '11 when I came back and

22 doing the work that you just asked me about

23 recently.

24

Q

So you're saying you didn't do

25 any work for the company in 2010, or you did

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2 do work in 2010?

3

A

Before I went to Skydive Long

4 Island.

5

Q

From what period of time to what

6 period of time did you collect unemployment

7 benefits?

8

A

I don't have a -- that's a good

9 question because it took so long to get any

10 response in that broken system, that awful

11 system --

12

MR. ANTOLLINO: Just answer the

13

question.

14

Q

It's an awful broken system. I

15 got you.

16

A

It is. It's awful. I think

17 actually by the time I actually got any

18 benefits, it was the end of November of 2010.

19 It took that long.

20

Q

How long did you receive those

21 benefits for?

22

A

I think it was just until

23 January, the end of January. Maybe early

24 February.

25

Q

Why did you stop receiving

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2 benefits?

3

A

Because we got into a dispute

4 over a program that I applied for,

5 599 Program, and they suspended my benefits.

6

Q

What is a "599 Program"?

7

A

It has to do with training. If

8 you are in school or in an approved training,

9 and I'm not going to speak as if I'm an

10 expert on this, because I don't have the rule

11 in front of me because it's all very

12 complicated, you can receive benefits for

13 unemployment while you are actually in school

14 full-time, as long as you meet these specific

15 criteria that was listed in their handbook,

16 and I met that criteria, so we actually still

17 have an open case to this day, and I intend

18 to win that to get the remaining benefits

19 with unemployment.

20

Q

You do?

21

A

I do.

22

Q

How do you intend to do that?

23

A

When the Judge -- when I finally

24 get a hearing and I get to talk to the Judge,

25 I think, just as in the case with the

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2 Workers' Comp, I think the Judge will see it

3 my way.

4

Q

You do?

5

A

I do.

6

Q

Has anybody advised you on it?

7

A

Like an attorney, you mean?

8

Q

Yes.

9

A

Not specifically.

10

Q

Generally?

11

A

No. They have not specifically

12 advised me on that. I'm kind of handling

13 that on my own. I think -- it's a

14 bureaucracy. I think the facts speak for

15 themselves, and then when it gets to a point

16 where a Judge can look at it, it will be

17 easy.

18

Q

Do you know what the earnings

19 are of Altitude Express or Skydive Long Island?

20

A

What they make as a corporation?

21

Q

Yes.

22

A

I don't.

23

Q

Do you know the periods of time

24 in which they make their money?

25

A

I don't know, specifically, but

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2 I think they are capable of making money year

3 round. They can sell gift certificates over

4 the winter, even though they're not jumping.

5 They can actually do jumps in January. I've

6 seen posts for jumps in the winter, so it's

7 just not the up, main season.

8

Q

Do you agree that skydiving is a

9 seasonal sport?

10

A

In some areas, it is, and in

11 some areas, it is not.

12

Q

Would you say that Skydive Long

13 Island is a seasonal sport, dependent to

14 operate mostly in the warmer weather?

15

A

Typically so for Skydive Long

16 Island; yeah, yes.

17

Q

So if you actually swore to the

18 accuracy of that statement, that would be

19 correct?

20

A

I think I did say that.

21

Q

I think so too.

22

A

Yeah.

23

Q

I believe you said the last jump

24 of each day occurred a half hour before

25 sunset; is that correct?

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2

A

Well, if everybody is following

3 FAA rules and United States Parachute

4 Association rules and all the rules that

5 you're supposed to follow, then technically

6 speaking, the last jump is supposed to be

7 wheels up, which means takeoff, thirty

8 minutes before sunset; whatever the official

9 posted sunset is.

10

Q

How long does a jump actually

11 take?

12

A

That depends on the type of

13 jump, the type of aircraft that's being used

14 to take the jumpers to altitude, and the

15 altitude of the jump.

16

Q

When you were at Skydive Long

17 Island, how long did your jumps take?

18

A

Well --

19

Q

Generally? You can give me the range.

20

A

That's better because there is

21 two different aircrafts, and they operate at

22 two very different speeds and they were

23 different altitudes, so a jump could go

24 anywhere from, I would say, ten to twenty,

25 twenty-two minutes or so, somewhere in that

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2 neighborhood.

3

Q

In a ten to twenty-minute

4 period, you would earn somewhere around $40;

5 is that correct?

6

A

That's correct. You could do

7 pretty well, depending on which plane you're

8 in. If you're lucky and in the KingAir all

9 day, you did better because it was a faster

10 plane. You could get up and down quicker and

11 do more jumps.

12

Q

That was the ten-minute jumps;

13 right?

14

A

Well, the reason I said ten is

15 because that's if you are doing some kind of

16 jump mastering with a student that's not a

17 tandem and they're getting out at a low

18 altitude on the way up to a higher altitude,

19 so that's why I included that. That's not

20 the typical tandem jump. A typical tandem

21 jump is going to be fifteen to twenty

22 minutes.

23

Q

Okay.

24

A

Tandems were, you know, were the

25 main staple. There's all kinds of other

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2 variables.

3

Q

Most of the jumps took between

4 fifteen and twenty minutes for which you

5 would earn the $40; correct?

6

A

Yeah. Sometimes a little less

7 if it was in the KingAir and you didn't get

8 full altitude, for whatever reason, and

9 sometimes that happened because of traffic or

10 clouds.

11

Q

And again, if it was a cloudy

12 day or a rainy day, you ended up hanging out

13 around there, but you could go run errands or

14 whatever, but you didn't go home because it

15 just didn't work out for you; correct?

16

A

I typically didn't go home

17 because it was too far, but it depends on the

18 kind of clouds. I know that maybe sounds a

19 little hard to understand, and the kind of

20 weather.

21

Q

No, I understand. You got your

22 nimbus, your cumulonimbus, your thunder.

23

A

If it was, you know, stuff is

24 moving in, it's definitely not going

25 anywhere, then you know probably we're done

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2 for the day. If it was hit-and-miss stuff

3 coming and going, you know, you could maybe

4 get a few loads off in between the stuff, and

5 then more rain would come, so it would just

6 depend, and then it depends on the altitude

7 of the clouds.

8

Sometimes the ceiling might be

9 10,000 feet. We could still do jumps below

10 10,000 feet without breaking the law. It

11 depends.

12

Q

You would judge from the weather

13 whether or not you would hang around or not;

14 correct?

15

A

We wouldn't judge. The decision

16 had to come down from Lauren. Lauren, a lot

17 of times, made the call, and I think when she

18 made the call, it was probably with Ray's

19 approval. It would come down from Ray or

20 Lauren and possibly Rich on whether we're

21 done or the pilot.

22

Keep in mind, it's a little bit

23 complicated. I want everybody to be able to

24 understand this. Ray runs the drop zone, he

25 owns the drop zone, he controls most things.

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2 However, the drop zone cannot operate if the

3 pilot does not or cannot fly the aircraft,

4 and the pilot has the absolute final say on

5 whether anybody goes anywhere, bar none.

6

Q

What was the least amount of

7 jumps that you had performed on a day?

8

A

That would be easy. It would be

9 zero.

10

Q

And that's if you showed up and

11 the weather just didn't permit a jump;

12 correct?

13

A

That's right.

14

Q

In which case, you'd --

15

A

You'd just have to see what the

16 situation was going to be. It was an

17 on-the-fly thing.

18

Q

But while you're waiting around

19 for the weather to clear, you can go --

20

MR. ANTOLLINO: Objection.

21

Q

-- get a sandwich, order a

22 pizza, or something?

23

A

It depends. I'm not going to

24 make a general statement about that because

25 it just simply depends.

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2

Q

Just some days you could, and

3 some days you couldn't?

4

A

Some days you could, and some

5 days you couldn't.

6

Q

Some days you could go home; and

7 some days you couldn't?

8

A

Yeah.

9

Q

You just wouldn't go home

10 because it was pretty far; right?

11

A

Well, yup. If I had to go home

12 and come back, it would have been too far, so

13 really that wasn't an option for me, because

14 what if I'm on the way home and almost to

15 Coram, and then a hole opens up and we got

16 twenty or thirty --

17

Q

Jumpers?

18

A

-- customers standing there that

19 we can get in the air and I'm not there to do

20 it, that wouldn't be good.

21

Q

Some people live pretty close to

22 the --

23

A

They do.

24

Q

-- jump zone; right?

25

A

Yes, they do.

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2

Q

Who lived the closest to the

3 jump zone?

4

A

I think Duncan and Willie at the

5 time and Alex Allen.

6

Q

Now, you and Willie weren't that

7 close, but Duncan was a good guy, right,

8 Duncan liked you?

9

A

Everybody was a good guy.

10

Q

Everybody; all of the workers

11 were good guys, even Willie?

12

A

Even Willie. Willie was one of

13 those people that we talked about earlier

14 that needed a little bit of work.

15

Q

Did Duncan or Willie ever invite

16 you to their house to get something to eat

17 during the down times?

18

A

Not during those times; no.

19

Q

During any other time?

20

A

Yes. I've been over to their

21 house, but not during, you know, workdays.

22

Q

After work, you'd go over and

23 socialize; right?

24

A

Actually, no. Believe it or

25 not, social as we are with those long days,

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2 the people that work there, the professional

3 jumpers, were the ones who didn't socialize a

4 whole lot because we were worn out. You went

5 home. You had very little time to do what

6 you needed to do for your person, in my case,

7 my errands, workouts, whatever, and then you

8 had to be back the next day, so those of us

9 that worked full-time, we didn't really,

10 during the heavy part, we didn't socialize a

11 whole lot.

12

Q

Did you ever get to workout at

13 the drop Zone?

14

A

No.

15

Q

Do pushups, sit-ups, or

16 pull-ups?

17

A

No.

18

Q

Never did that?

19

A

No.

20

Q

Were there shower facilities at

21 the drop zone?

22

A

Crude, but I never used it, but

23 out behind the electrical transformer, there

24 was a stall and I think a water hose.

25

Q

Well, it's always good to keep

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2 water hoses by electrical transformers;

3 right?

4

A

Right.

5

Q

But that was available for you

6 to use; right?

7

A

If you felt like you could get

8 cleaner in that place, then I guess you could

9 shower there.

10

Q

Were there ever beverages

11 provided in the drop zone?

12

A

For sale, or -- Ray had a

13 hamburger shack that you could get soft

14 drinks from and some Coke machines.

15

Q

Anybody ever bring beer to the

16 drop zone?

17

A

All the time.

18

Q

Who would bring beer?

19

A

That could be staff, fun

20 jumpers, customers. Beer is encouraged.

21

Q

But you can't jump while you're

22 drunk; can you?

23

A

No, you cannot.

24

Q

And you would never jump while

25 you were drunk; right?

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2

A

Absolutely not.

3

Q

Did you ever drink a beer at the

4 drop zone?

5

A

Yes.

6

Q

On occasion; right?

7

A

On occasion.

8

Q

It would be like, you know, once

9 a week, maybe once or twice a week?

10

A

I wouldn't call it a per-week

11 thing. It would just depend on the day and

12 if there was something going on at the drop

13 zone. Typically, in the industry, or, you

14 know, culturally-wide, skydivers ended the

15 day with beer. They have a beer light. They

16 even have an actual beer light at Skydive

17 Long Island. A lot of drop zones do. It's a

18 green light or a light, and when it's turned

19 on, you're allowed to drink beer.

20

Q

Your attorney had mentioned

21 something about getting laid yesterday.

22

Do you know what he was talking

23 about?

24

MR. ANTOLLINO: Objection. May

25

I clarify for the record?

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2

MR. ZABELL: No.

3

MR. ANTOLLINO: When you say,

4

"laid," are were you spelling it

5

L-E-I-D or L-A-I-D?

6

MR. ZABELL: I'm just saying

7

that you were talking about getting

8

laid yesterday, and I'm asking your

9

client if he knows what you were

10

talking about.

11

A

I think that he was making

12 reference to a posting that he may have seen

13 on Skydive Long Island's website about a

14 summertime party, a luau, where it mentioned

15 something about getting laid.

16

Q

Do you recall how it was spelled

17 because your attorney seems to want to know?

18

A

I don't recall how it was

19 spelled. I may have seen it in passing.

20 Drop zones routinely have newsletters and

21 publicize on Dropzone.com and other websites,

22 boogie-type events for things like that, not

23 every single one of them, but it sounds like

24 something that a drop zone would have.

25

Q

Were you ever at a getting-laid

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2 party at the drop zone --

3

A

No.

4

Q

-- on Long Island?

5

A

No. I didn't stick around much

6 for parties at the drop zone, because I had

7 to be at work the next day, or if I didn't

8 have to be at work the next day, then I had

9 other stuff to go do (indicating).

10

Q

You're pointing to your lawyer.

11 I don't know --

12

A

I'm pointing as "in a way." I

13 had other stuff to go do.

14

Once you've been at the drop

15 zone for twelve hours or more and you're

16 working there, at least for me and I think

17 for Duncan sometimes and the other full-time

18 staff, we would pretty much just end up

19 leaving. Maybe have a beer and then leave.

20

Q

You're unfamiliar with this

21 getting-laid party that your lawyer was

22 referring to?

23

A

I think I've seen, you know, in

24 passing, this luau that they have. They have

25 all kind of quirky parties out there. They

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2 have some quirky parties at Skydive Long

3 Island that take place.

4

Q

Did they in 2009?

5

A

Yes.

6

Q

What quirky parties did they

7 have?

8

A

Same ones. They have the same

9 parties. The party themes tend to be similar

10 in nature or the same one regurgitated and

11 redone year after year.

12

Q

What parties had occurred at

13 Skydive Long Island in 2009 when you were

14 working?

15

A

Well, they have some kind of

16 disco, '80s, something-or-other party during

17 the time when the casa was supposed to be

18 there, which is a boogie that Rich mentioned,

19 and then boogie is just another word for a

20 skydiving event that involves more people and

21 typically, a specialty aircraft that doesn't

22 usually reside at the drop zone being brought

23 in for a special occasion. For those kind of

24 occasions. I think they had that luau, as

25 well. I think that was a separate occasion,

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2 but I'm not sure.

3

In 2009, I wasn't available to

4 be able to go to too many of the parties

5 because I was on crutches.

6

Q

When you were on crutches, you

7 weren't working; correct?

8

MR. ANTOLLINO: Objection.

9

A

I was not.

10

Q

During the period of time before

11 you busted up your ankle --

12

A

It was a short period because --

13 not terribly short, a couple of months, I

14 guess.

15

Q

Well, there was May and June;

16 correct?

17

A

May, June, and the first day of

18 July; yeah, so -- what were you asking about?

19

Q

Did you go to any of those

20 parties in 2009?

21

A

Not that I recall.

22

Q

Were you invited to any of those

23 parties?

24

A

You're all invited; yes.

25

Q

And you choose not to go?

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2

A

If I didn't go, then I'm sure I

3 made the choice.

4

Q

Was there anything occurring at

5 the parties that made you uncomfortable?

6

A

I can't say because I wasn't

7 there, but things do go on at some of those

8 parties at some drop zones that I don't

9 really feel it's part of my liking.

10

Q

Does that have anything to do

11 with the disco music?

12

A

No.

13

Q

You're okay with the disco

14 music?

15

A

I'm okay with it, but, you know,

16 I got other stuff to go do and other ways to

17 entertain myself than to hang around the drop

18 zone.

19

Q

Well, what things go on at those

20 parties, at Skydive Long Island parties, that

21 you don't like?

22

A

People get drunk.

23

Q

You don't like people getting

24 drunk?

25

A

I prefer not to be around drunk

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2 people, so I don't get drunk myself. It's

3 just that I don't like drunkenness. It

4 doesn't mean that you can't drink, but if

5 you're drunk and slobbering and falling all

6 over the place and being loud and whatever

7 people get like when they get drunk, I don't

8 like that.

9

Q

You gave that all up in 1999 and

10 2000; right?

11

A

I did.

12

Q

What else goes on at the parties

13 that you don't like to participate in?

14

A

Well, I can't say exactly

15 everything that goes on at some of these

16 things. I mean, you know, jumpers tend to

17 hook up with other jumpers at events like

18 that when people get drunk and start doing

19 stupid things, and so, you know, there's not

20 too many gay jumpers around, and I just got

21 other things to go do.

22

Q

Slim pickings and --

23

A

If you want to call it that,

24 then yeah.

25

Q

I'm trying to get a handle on

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2 your position here.

3

A

My position is that if I have an

4 opportunity to hangout at the drop zone at a

5 party and listen to disco music or to go to

6 Fire Island or something during that same

7 time period and be around some of my gay

8 friends and listen to that kind of music, I'm

9 probably going to go do that.

10

Q

Is there a difference between

11 straight disco and non-straight disco?

12

A

Well, disco is different than

13 some of the kind of music that we listen to.

14 The kind of music that I prefer is better

15 than the music at the parties.

16

Q

Okay.

17

A

I guess you could say so.

18

Q

So it wasn't so much the people;

19 it was --

20

A

No.

21

Q

-- the music and the drinking?

22

A

No, it's not so much the people.

23 If you're there all the time already, you've

24 been there all day, it's time to go do

25 something else. It's just that simple.

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2

Q

So you weren't excluded?

3

A

No, I wasn't excluded.

4

Q

You have in front of you

5 Defendants' Exhibit B; do you not?

6

A

Right here (indicating).

7

Q

And you reviewed that?

8

A

I looked it over last night.

9

Q

Do you know what that document

10 is?

11

A

Yes. It's says, (reading),

12 Amended Response to Demand for

13 Interrogatories.

14

Q

And you swore to its accuracy;

15 did you not?

16

A

I would say I did, according to

17 page 13. Yeah, I think that says -- to the

18 best of my knowledge, yes.

19

Q

Is there anything you want to

20 change in there?

21

A

I'd have to look it over again

22 to answer that question right now, but while

23 I was reviewing it last night, I didn't see

24 anything that -- I didn't grab a pen or go

25 for anything to cross out, so no, I think

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2 it's probably okay.

3

Q

Okay. Tell me when you made any

4 complaints about alleged gender or sexual

5 orientation discrimination while you were

6 employed at Skydive Long Island.

7

A

I think we covered that -- I

8 think I covered that in here, in this

9 document, and I didn't make any complaints to

10 the owner, Ray, or Rich about that or any

11 supervisory personnel directly.

12

Q

Did you make any complaints

13 indirectly?

14

A

What would be an indirect

15 complaint?

16

Q

I don't know. But when you

17 said, I didn't make any complaints directly,

18 you're qualifying --

19

A

Oh, okay --

20

Q

-- and I'm obligated to follow

21 up on your qualifier, so if your answer is, I

22 didn't make any complaints at all, then I

23 won't have to follow up on that question.

24

A

Yeah, I see what you're saying.

25 Then I didn't make any complaints to anybody

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2 at Skydive Long Island about it.

3

Q

Did you complain to anybody

4 else?

5

A

In the world?

6

Q

Yes.

7

A

Yes.

8

Q

Who did you complain to?

9

MR. ANTOLLINO: Don't say

10

anything you said to your attorney.

11

Other than that, you can answer the

12

question.

13

Can I take a bathroom break?

14

MR. ZABELL: I think you can.

15

COURT REPORTER: Mr. Zabell,

16

there is a question pending without an

17

answer.

18

MR. ZABELL: Yes, thank you.

19

Answer the question before we

20

break please.

21

Read back that question, please.

22

(Whereupon, the requested

23

portion of the record was read by the

24

court reporter.)

25

A

I made an EEOC complaint.

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2

Q

This was after your employment

3 ended?

4

A

Oh, okay.

5

Q

Right?

6

A

Yes.

7

Q

You made no complaints while you

8 were actually employed at Skydive Long Island

9 to anybody?

10

A

No.

11

Q

Okay.

12

MR. ZABELL: Go to the lavatory.

13

MR. ANTOLLINO: Okay, great.

14

Thank you.

15

(Whereupon, a recess was taken

16

from 5:38 p.m. to 5:58 p.m.)

17

Q

Do you recall ever signing a

18 release when you began your employment at

19 Skydive Long Island?

20

A

I signed the standard waiver

21 release document that's required for anybody

22 to make a skydive at any skydiving center in

23 the United States and for most places to

24 qualify.

25

Q

Did you understand that that

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2 release releases Skydive Long Island from any

3 and all claims that you may make against it?

4

MR. ANTOLLINO: Objection.

5

A

No.

6

Q

Doesn't it, in fact, say that?

7

A

If I could be provided with a

8 copy of it, it says something to that context

9 in regard to anything related to the jump,

10 not employment. It doesn't mention anything

11 about anything regarding employment in there

12 whatsoever, so no.

13

And having familiarity of jump

14 operations over almost a period of twenty

15 years, I've come to know that the standard

16 indemnification and waiver in release of

17 liability for skydiving doesn't include

18 employment matters whatsoever, and I've never

19 seen one include an employment issue

20 whatsoever.

21

Q

You haven't even discussed the

22 possibility as to whether or not you've

23 waived your right to bring any claims against

24 Skydive Long Island?

25

MR. ANTOLLINO: Objection.

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2

With anyone other than with your

3

attorney.

4

A

I've discussed it with my

5 attorney.

6

Q

Just so you know, that's exactly

7 what he just told you not to say, but okay, I

8 got you. I'm fine.

9

MR. ZABELL: You tried. You

10

gave it the old college try.

11

Q

When you worked at Skydive Long

12 Island --

13

MR. ZABELL: Are you okay?

14

MR. ANTOLLINO: Yes, sure.

15

MR. ZABELL: Because if you need

16

a break, I'll --

17

MR. ANTOLLINO: No, we don't

18

need a break. Keep going.

19

A

I stated what I said about the

20 waiver. I know what the waiver means, what

21 its intended purpose is for, and I said what

22 that was.

23

Q

And its intended purpose is to

24 release claims against Skydive Long Island;

25 correct?

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2

A

And indemnify the drop zone and

3 the instructors for any claims made in

4 relation to getting hurt or killed. It is

5 not intended for anything related to

6 employment.

7

Q

And you're a lawyer?

8

MR. ANTOLLINO: Objection.

9

A

I am not a lawyer. I am an

10 instructor that's been in the industry for

11 almost twenty years now and have seen this

12 paperwork a lot of times, and I know what it

13 means.

14

Q

Have you actually seen any

15 decisions of courts interpreting that

16 document?

17

A

Yes. Over the years, I have

18 when customers or skydivers got hurt and

19 actually went and sued a drop zone because

20 they got hurt or a family has sued because

21 somebody got killed. I have, over the years,

22 seen it put to the test in those regards.

23

Q

Were there coworkers that you

24 were more senior to at Skydive Long Island?

25

A

Yes.

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2

Q

What is --

3

A

That's using one of those

4 definitions that was mentioned yesterday, and

5 it can be number of jumps, number of years,

6 or number of years at a drop zone.

7

Q

Were you treated better or worse

8 than those people that you were more senior

9 to?

10

A

I don't think seniority has made

11 any difference.

12

Q

You were all treated the same?

13

A

Mostly. A newbie gets treated a

14 little differently than someone that's senior

15 in years.

16

Q

You guys picked on the newbies a

17 little bit?

18

A

What's that?

19

Q

You guys picked on the newbies a

20 little bit?

21

A

I don't.

22

Q

The others do?

23

A

It's just a pecking order.

24

Q

Were you picked on when you were

25 a newbie?

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2

A

Everybody gets picked on a

3 little bit; yeah.

4

Q

But it kind of stopped after you

5 were a newbie?

6

A

No. It's skydivers.

7

Q

Skydivers, they just pick on

8 everybody?

9

A

They do.

10

Q

So all your coworkers got picked

11 on at one point or another?

12

A

Skydivers -- yeah, they had...

13

Q

Sometimes the bottle would point

14 to you, and sometimes the bottle would point

15 to somebody else?

16

A

That's a good way to put it.

17

Q

Right?

18

A

That's a good way to put it, so

19 yes.

20

Q

You were treated just like

21 everybody else there; right?

22

A

For the most part.

23

Q

So if you swore under oath that

24 you weren't, would you be lying; correct?

25

A

No. I said for the most part.

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2

Q

Yes. For the most part, you

3 were treated just like everybody else,

4 correct; yes or no? That's a yes-or-no

5 question, and I get to ask yes-or-no

6 questions.

7

A

You do, but that's --

8

Q

You said that for the most part,

9 you were treated like everybody else;

10 correct?

11

A

For the most part.

12

Q

So that's a yes; correct?

13

A

Yes, for the most part --

14

Q

Thank you.

15

A

-- I was treated like everyone

16 else.

17

Q

Now, could you tell me what

18 comments John made?

19

A

What comments he made?

20

Q

Yes.

21

A

I don't know that I specified

22 John's comments in here (indicating).

23

Are you talking about when he

24 got upset with me where my stuff was located?

25

Q

Any comments that he made to you

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2 about your sexuality.

3

A

Any comments -- he could have

4 said anything.

5

Q

I'm not asking what he could

6 have said.

7

What did he say?

8

A

I don't recall at this moment.

9

Q

What comments did Ray Maynard

10 make to you about your sexuality?

11

A

Well, he said that my pink cast

12 looked gay.

13

Q

Good thing you weren't at work

14 when you had your cast on; right?

15

A

No, I didn't say that; you said

16 that. I was at work.

17

Q

Right. But you weren't working

18 when you had your cast because you couldn't

19 work when you had your cast; correct?

20

A

I was not working doing jumps,

21 and I wasn't working doing any other

22 functions, but I did attend a mandatory staff

23 meeting right after I got my pink cast that I

24 got an e-mail to attend while I was on

25 crutches, and I was at that.

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2

Q

Do you have that e-mail?

3

A

For the mandatory staff meeting?

4

Q

Yes.

5

A

I think I would have provided

6 that, but yes.

7

Q

And it was directed to all

8 staff; correct?

9

A

It was directed to all staff.

10

Q

But you weren't a staff member

11 because you couldn't work at that time;

12 right?

13

A

That's not correct. I'm still

14 on the staff. Just because you get hurt

15 doesn't mean you no longer are on the staff.

16

Q

Well, you're no longer working

17 and on payroll; correct?

18

MR. ANTOLLINO: Objection.

19

There is no payroll.

20

A

No, you're not not on staff

21 anymore because you get hurt. Instructors

22 get hurt all the time. They're still on

23 staff.

24

Q

Who heard Ray make that comment

25 to you?

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2

A

Which one?

3

Q

Your pink cast looks gay.

4

A

I heard him make that to me when

5 I was coming through the door to the office

6 as he was going the other way when he first

7 saw the pink cast with the pink toenails.

8

Q

Who else heard him say that?

9

MR. ANTOLLINO: Objection.

10

A

I don't know who else. I don't

11 know.

12

Q

So nobody else; right?

13

MR. ANTOLLINO: Objection.

14

A

No. I'm not saying nobody else.

15 Somebody else could have heard him.

16

Q

Well, I'm asking you to identify

17 who else heard him.

18

A

I can't identify who else heard

19 it. I mean, God could have heard it. I

20 mean, Lauren could have heard it. Anybody

21 that was within earshot could have.

22

Q

Who was physically within

23 earshot at that time?

24

A

Well, it depends on how good

25 your hearing is, so is that from here to a

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2 mile away, or here to ten feet, twenty feet?

3 Is there walls in the middle, is there doors

4 closed? I don't know, so I can't say who

5 else could have heard that.

6

Q

What else did Ray say to you?

7

A

At that time?

8

Q

At any time, regarding your

9 sexuality.

10

A

I can't possibly recall every

11 incident at this seating.

12

He mentioned at another later

13 time when I was out at the drop zone on

14 crutches with the pink cast and I was sitting

15 on the bench by the Coke machines outside the

16 office with the pink toenails, in regard to

17 that, that I was going to have to put a sock

18 over my toe, over my foot.

19

Q

Why were you at the drop zone

20 that day?

21

A

Because I just came out to see

22 what was going on and to visit.

23

Q

So you came out to hangout?

24

A

A little bit, yeah.

25

Q

And he didn't say you couldn't

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2 hangout there; he just said you had to put a

3 sock on your foot; right?

4

A

He wanted me to cover up the

5 pink toenails.

6

Q

Could it possibly be that he

7 didn't want any customers to see somebody

8 hobbling along with a broken foot?

9

A

I think the characterization

10 that you might be drawing that from Rich's

11 testimony is flawed. It's not uncommon for

12 injured jumpers to come out and hangout at

13 the drop zone. It happens all the time at

14 drop zones all over the country. Jumpers

15 hobbling around on crutches, canes, walkers.

16 There are even some in wheelchairs. They

17 come to the parties. They come hangout at

18 the drop zone.

19

Q

Great. Who else at Skydive Long

20 Island in 2009 was walking around with

21 crutches and a broken foot?

22

A

I'd have to stop and think.

23 There --

24

Q

I'd like you to stop and think.

25

A

-- were some.

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2

MR. ANTOLLINO: You don't need

3

to interrupt him, and don't badger him;

4

okay? Let him answer the question --

5

MR. ZABELL: Remember you said

6

that you were going to remain silent?

7

MR. ANTOLLINO: No, I don't

8

remember that I said that.

9

MR. ZABELL: You do. That's why

10

you're giggling to yourself.

11

Does everybody else remember him

12

saying he was going to remain silent?

13

Madam reporter, did you remember

14

him saying that?

15

MR. ANTOLLINO: I did not say

16

that.

17

MR. ZABELL: You did say that,

18

sir.

19

Q

Just tell me the names of the

20 people who were hobbling around with broken

21 legs or feet or casts, or even crutches

22 without any of that in 2009.

23

A

I don't know the names of all

24 the people. There are a lot of people that

25 jump there.

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2

Q

Give me the names of just one of

3 them.

4

A

I don't recall.

5

Q

Okay.

6

A

I'm very bad with names and it's

7 not uncommon. I mean, people know that

8 sometimes when I would meet a person if they

9 just told me their name and I get distracted

10 for a minute, I might forget their name.

11

MR. ANTOLLINO: All right.

12

We're going to take a break now.

13

(Whereupon, a recess was taken

14

from 6:09 p.m. to 6:11 p.m.)

15

Q

You're crappy with names, even

16 though you have a good memory because your

17 sister told you so; right?

18

MR. ANTOLLINO: Objection.

19

Argumentative.

20

Q

You can answer.

21

A

I don't remember names very

22 well. I do remember events pretty well, as I

23 said before.

24

Q

Do you remember somebody walking

25 around the drop site in 2009 with a cast on

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2 their foot?

3

A

There were more than one. I

4 just don't remember who. It's so common.

5 It's like asking me if you remember people

6 walking around on the drop zone in 2009 or

7 2010; who were they? It's not an uncommon

8 thing if you're jumping out of airplanes.

9 People get hurt. It's not unusual to see

10 hurt people hanging out at the drop zone

11 telling their story or whatever about their

12 injury or just to be there to socialize,

13 because it's a social group of people.

14

Q

So you weren't there to work;

15 you were there to socialize; correct?

16

A

I came out infrequently just to

17 say hi, let people know how I'm doing, see

18 what's going on, but I didn't spend very much

19 time there. I didn't stay long. I was on

20 crutches. It's not a friendly place to get

21 around when you are on crutches and people

22 are busy working.

23

Q

And customers who were there who

24 are about to jump out of a plane; correct?

25

A

That is also true.

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2

Q

You can imagine how it might be

3 off-putting for a customer to see a bunch of

4 people bobbling around with broken feet

5 around the drop zone; correct?

6

A

No, I can't, and I can tell you

7 why, very simply.

8

Q

Go ahead. Please do.

9

A

Because it's not any different

10 than somebody hobbling around on a crutch

11 that slipped and fell on the bathtub and

12 broke their ankle in exactly the same manner,

13 like I talked to people while I was on

14 crutches with my broken ankle that had that

15 happen to them.

16

Unless the customer knows that

17 you got hurt skydiving, it's no different

18 than anybody else walking around that got

19 injured in a car accident or any other way

20 that people can get injured to include

21 getting out of bed.

22

Q

You don't think they just

23 assumed it?

24

A

They would have had to have

25 known that I was on staff. I didn't have a

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2 staff shirt on.

3

Q

They can't infer that just from

4 you hanging around talking to people there;

5 is that what you're saying?

6

A

I supposed -- I would suppose

7 that if they listened in and cued in on just

8 what I was saying and watched my interactions

9 with the other staff, they might be able to

10 surmise that maybe I'm on staff, I have

11 something to do with the jump operation and

12 also on crutches, maybe.

13

But from what I witnessed,

14 people are more talking on their cellphones

15 and thinking about -- watching other people

16 jumping and getting ready to do their jump,

17 so they're not watching me.

18

Q

Are you Catholic?

19

A

I'm agnostic, but I was brought

20 up Catholic.

21

Q

Are you Scottish?

22

A

German.

23

Q

Are you Hispanic?

24

A

No.

25

Q

Did you ever mention to anyone

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2 at Skydive that you were Catholic, Scottish

3 or Hispanic?

4

A

No, I never mentioned Scottish

5 or Hispanic. People may have asked me over

6 the years what my religion was. Rainy day

7 conversation possibly, so I may have

8 mentioned that I was Catholic. That could

9 have come up, and -- what was the first one?

10

Q

Catholic.

11

A

Okay, so I may have mentioned

12 that somewhere along the way.

13

Q

Were you offended by that?

14

A

No, no. I've not been offended

15 by someone calling me a Catholic.

16

Q

I'm a bit confused. It seems

17 like you were terminated because somebody

18 complained that you were acting like someone

19 whose sexual orientation was that of the

20 opposite sex as opposed to the same sex; is

21 that correct?

22

MR. ANTOLLINO: Objection.

23

A

That's a little bit worded

24 confusing, so maybe you could express that a

25 little bit.

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2

Q

Wasn't the complaint that you

3 were kind of hitting on Rosanna Orelana?

4

MR. ANTOLLINO: Objection.

5

A

Mr. Kengle made that complaint

6 that he thought that I was trying to get

7 familiar with his girlfriend. That's what he

8 thought.

9

Q

And she testified that the way

10 you were touching her made her uncomfortable;

11 correct?

12

A

I think we talked about that

13 earlier. I'd have to review that testimony.

14 I'm still not sure that she thought that.

15

Q

Did your lawyer give you the

16 deposition transcript yet?

17

A

I haven't reviewed it, and I

18 haven't seen it yet.

19

Q

Me neither. He hasn't given it

20 to me yet.

21

A

It was just a few weeks ago, so

22 that's not very long.

23

MR. ANTOLLINO: Yes, we'll talk

24

about that later. Do you want to split

25

the cost?

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2

MR. ZABELL: No.

3

MR. ANTOLLINO: All right, then

4

why don't you get it? It's a

5

non-party.

6

MR. ZABELL: We have the option

7

of sharing, of exchanging transcripts

8

with each other or not.

9

MR. ANTOLLINO: Okay, we'll talk

10

about it later. How about that?

11

MR. ZABELL: Okay.

12

Q

It seems to me like her

13 complaint was not that you were gay, it's

14 that she thought you were straight.

15

MR. ANTOLLINO: Objection.

16

Q

Is that correct?

17

MR. ANTOLLINO: Objection to

18

characterization.

19

A

No, no. She was --

20

Q

Well, he thought you were

21 straight because you were trying to get

22 familiar with her --

23

MR. ANTOLLINO: Wait, wait.

24

You're not letting him answer the

25

question --

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2

Q

-- correct?

3

MR. ANTOLLINO: Let him answer

4

the question.

5

Q

Correct? He thought you were

6 straight, because he thought you were trying

7 to get familiar with his girlfriend; correct?

8

MR. ANTOLLINO: Objection.

9

A

No. And that's an if-then-us

10 question. That's an if because --

11

Q

No, it's not. It's a direct

12 question to which you're required to answer.

13

A

All right. Okay.

14

Q

He thought you were straight,

15 because you were trying to get familiar with

16 his girlfriend; correct?

17

MR. ANTOLLINO: Objection.

18

A

No.

19

Q

So he thought you were gay and

20 trying to get familiar with his girlfriend.

21

A

That's what he said, and he

22 said, in his testimony, that those gay guys

23 think they can get away with it because

24 they're gay. If you recall, that's what he

25 said.

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2

Q

I don't recall him saying that.

3

A

Well, when you get the

4 transcripts, you'll be able to see that

5 that's what he said. I thought that that was

6 really strange, and I still think it's

7 strange.

8

Q

Well, did you think you could

9 get away with being familiar with his

10 girlfriend?

11

A

I don't get familiar with women

12 in the sense that he was saying that, so

13 there is nothing for me to think that I can

14 get away with. And I had no reason to be

15 trying to get away with anything, and I

16 wasn't getting away with anything. I was

17 just simply doing my job.

18

Q

But he thought you were trying

19 to get familiar with her?

20

MR. ANTOLLINO: Objection.

21

A

That's what he said.

22

Q

And that's what he complained

23 about; correct?

24

MR. ANTOLLINO: Objection.

25

A

No, that's not what -- it sounds

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2 like he called and said that the complaint

3 was to Ray. That's what he said when he was

4 deposed. He said that when he was deposed.

5

Q

Is it your impression that he

6 was complaining that you were gay or that you

7 were acting straight with regard to his

8 girlfriend?

9

A

After listening to his

10 deposition, I'm not exactly sure what.

11

Q

It could have been either one of

12 those; right?

13

A

It could have been because I'm

14 gay. It could have been because he thought I

15 was hitting on his girlfriend. It could have

16 been he's just so insecure that he didn't

17 even know what he was thinking himself. I

18 don't know what was going on in that guy's

19 head.

20

Q

Could it have been that he

21 thought you were straight and trying to use

22 the excuse that you're gay, so therefore, you

23 couldn't have done what he's accusing you of

24 doing?

25

MR. ANTOLLINO: You know what;

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2

objection.

3

A

It could have been that he was

4 so shooken by the joke made because of his

5 insecurity that he may have. He was so

6 shooken by the joke make by another staff

7 member that, hey, how do you feel about your

8 girlfriend -- that he talked about getting

9 hit on so much in his deposition because

10 she's so pretty -- being strapped to another

11 guy. Maybe it was that.

12

Q

Maybe it was.

13

A

Maybe.

14

Q

But that's not a complaint about

15 your sexuality; is it?

16

MR. ANTOLLINO: Objection.

17

A

That specifically is not.

18

Q

I believe you testified at the

19 beginning of this deposition that Ray Maynard

20 asked you about your specific jump with

21 Rosanna Orelana; correct?

22

A

I think we talked about that;

23 yes.

24

Q

And he asked you what happened

25 there; correct?

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2

A

He was asking me questions about

3 it, about the jump.

4

Q

About the jump, okay, so he was

5 asking you in order to find out what occurred

6 during the jump; correct?

7

A

He briefly asked me if I

8 remembered, or he asked me about it.

9

Q

And you said you don't remember;

10 correct?

11

A

I did say something to that

12 effect, because it was three days ago and

13 twenty-or-thirty-jumps-plus ago.

14

Q

So he kind of did ask you to

15 respond to allegations of alleged

16 inappropriate touching; correct?

17

MR. ANTOLLINO: Objection.

18

Asked and answered.

19

A

No. He just asked me if you

20 took a girl named so-and-so on a jump on

21 Friday; did you, you know, or did you not.

22 He just asked me about the jump, if I took

23 the girl on the jump, and I said I don't

24 understand.

25

Q

So he just asked you about the

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2 jump and if you took the girl on the jump?

3

A

Right, yes.

4

He didn't go into detail asking

5 me questions about the jump and the manner

6 like he was investigating to find out what

7 happened. That discussion, like I mentioned

8 before, was about bringing me in there to

9 take adverse action against me, and that was

10 very clear. Ray was angry, he was irrational

11 and emotional, and he wasn't in there to find

12 out what Don Zarda did on the jump. He was

13 in there to tell Don Zarda what Ray Maynard

14 is going to do to Don Zarda.

15

Q

Except that you had no

16 recollection of the jump, so you could not

17 give him any information on it; correct?

18

A

At the time, I could not

19 remember specifics about the jump.

20

Q

So even if he was just trying to

21 investigate, you had no information to assist

22 in the investigation; correct?

23

MR. ANTOLLINO: Objection to the

24

characterization.

25

Q

Correct?

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2

A

Say that once more.

3

Q

Correct?

4

A

Say that once more, please.

5

Q

Correct?

6

A

Just repeat the question.

7

Q

Oh. Even if he was trying to

8 investigate --

9

A

Okay.

10

Q

-- you couldn't assist with the

11 investigation because you had no recollection

12 of the jump, correct; yes or no?

13

A

Correct. I --

14

Q

Thank you.

15

A

-- did not recall the jump and

16 requested to see the videos to help assist me

17 in recalling anything about the jump at the

18 time, and I was denied.

19

Q

Do you view women as helpless

20 and the fact that they need to be protected?

21

A

No, I don't view women and

22 needing help being protected.

23

Q

Do you think your attorney does?

24

A

We haven't discussed that, so I

25 don't know what he thinks.

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2

Q

Do you consider yourself to be

3 wussy?

4

A

I don't.

5

Q

Do you think you ever act like a

6 wussy?

7

A

Nope, I don't.

8

Q

What do you understand a wussy

9 to be?

10

A

Depends on the connotation and

11 in the context that that word is being used

12 in saying it. Sometimes it might not mean

13 anything. It just depends on who is saying

14 it. If it's an adversary and they're calling

15 you a wussy, most guys can agree that is

16 derogatory to possibly your manliness, so I

17 think it could take on that connotation. It

18 depends on the context, the connotation, and

19 the circumstance in which someone is calling

20 you that.

21

Q

Do you think you act less than

22 manly?

23

A

I don't; no.

24

Q

I mean, I look at you and I see

25 someone who looks particularly manly.

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2

A

Okay, that's good.

3

Q

Do you agree that that's the

4 vibe you give off?

5

A

I hear that.

6

Q

So if someone looks at you, you

7 believe you appear manly; is that correct?

8

A

For the most part.

9

Q

And that you act manly?

10

A

For the most part. I have, you

11 know, moments. If they see me in different

12 social settings, they might think a different

13 thing.

14

Q

Well, did people you worked with

15 at Skydive Long Island see you in different

16 social settings?

17

A

Yes.

18

Q

What were those different social

19 settings?

20

A

Well, they didn't go to Fire

21 Island with me and they didn't go to gay

22 events with me, but they knew about some of

23 those. They knew I went to Fire Island.

24 They know I'm gay. They don't understand how

25 we enjoy ourself socially and so forth.

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2

Q

By "we," are you referring to

3 you and myself?

4

A

Gay people.

5

Q

Oh, okay.

6

A

Most of them don't understand

7 that, but when we jumped into Neptune's

8 bar -- you might be familiar with it. It's

9 in the Hamptons.

10

Q

No.

11

A

Neptune's is a bar --

12

Q

Why are you assuming I'd be any

13 more familiar with Neptune's bar or

14 Jumping Jack's over at Cherry Grove?

15

MR. ANTOLLINO: He's not your

16

friend, Don.

17

A

Well, you live there, so I just

18 thought that you might know of Neptune's bar.

19 It's a bar that's on the beach out by the

20 Hamptons. It's a favorite for Skydive Long

21 Island to be able to jump into that beach bar

22 sometimes at the end of the day on Friday,

23 Saturday, or Sunday.

24

Q

When you say jump in, do you

25 mean jump from the sky and land at the beach

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2 bar?

3

A

Right, that's what I mean.

4

Q

That's kind of a cool thing to

5 do; right?

6

A

Yeah.

7

Q

A good way to get attention?

8

A

Good for Ray possibly and

9 advertising, I suppose. They have beer there

10 laying on the beach, and so things could be

11 worse.

12

But when we did that once, and

13 it was just twice that I did that, and that

14 was in 2010, I heard all the hype about it

15 previously from the employees about how great

16 it is and this, that, and the other thing. A

17 lot of the employees kept telling me how

18 great Neptune's is, and, Don, you're really

19 going to like Neptune's, and there's all

20 kinds of guys over at Neptune's that are just

21 your type, and on and on and on and on that I

22 heard this kind of talk in 2009 and even

23 in 2010.

24

So I finally went over there and

25 got to see it for myself, because there's a

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2 bunch of shirtless guys running around over

3 there all with their tanning lotion on,

4 there's a bunch of muscle bods, and they just

5 would go on and on about that.

6

Q

And is that not your type?

7

A

I didn't say that.

8

Q

Do you tan?

9

A

No, I don't.

10

Q

Are you a muscle guy?

11

A

I am in good shape.

12

Q

I look at you, and I'd say

13 you're pretty muscular.

14

A

Okay. Well, good. I don't tan.

15 My partner and I are in the medical spa

16 business, and we encourage people to stay out

17 of the sun, hence my white skin.

18

Q

SPF what?

19

A

One million, if you can get it.

20

Q

Okay. So you were encouraged to

21 go there because they thought there were guys

22 there that were your style; correct?

23

A

They did.

24

Q

Was that offensive?

25

A

A little bit. It was a little

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2 bit offensive, but it's just part of me

3 understanding that I know they don't

4 understand my lifestyle.

5

Q

What kind of guys do you like?

6

MR. ANTOLLINO: Objection. This

7

is getting --

8

A

Well, I have different

9 preferences. I don't like guys that look

10 like they're on steroids, which is what a lot

11 of people looked like they were on over

12 there. I don't like that. I'm not into

13 that. I think maybe because of the way I

14 appear that maybe they draw some kind of

15 correlation there, and they think that I'd be

16 interested in that.

17

Q

You got a little muscle-head

18 look to you.

19

A

Maybe, yeah, but not like what I

20 saw over there.

21

Knowing that they don't probably

22 understand my lifestyle, because they're not

23 gay and there's not a lot of gay skydivers,

24 there aren't, you know.

25

Q

Well, there's a whole group of

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2 them.

3

A

Yeah. It's small when you look

4 at the numbers compared to skydivers, it's

5 small, so there's not a lot. They don't

6 interact with gay people a lot. They don't

7 know our social norms and so forth like that.

8

Q

But your coworkers tried to

9 interact with you in a social setting; right?

10

A

Yes, yes, they did.

11

Q

And they tried to include you in

12 their socialization; correct?

13

A

Yes. And the reason I'm saying

14 I wasn't offended about that so much was

15 because I know they just don't understand,

16 but I didn't like that they were trying to

17 sort of force upon me the idea that I was

18 going to be into all these greased up,

19 steroid-like, shirtless guys over at

20 Neptune's bar on the beach. I kind of didn't

21 like that. That bothered me some, but I

22 dealt with it.

23

Q

Did it bother you because they

24 were wrong about the assumption of the type

25 of person you like?

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2

A

No. I had a pretty clear mental

3 image of what was going to be over there.

4 They described it well, and it turned out to

5 be exactly what was over there. It's just

6 simply not my crowd, so a lot of them

7 thought, wow, this will be great for Don.

8 This is his crowd. No, it's not my crowd.

9

Q

But they were trying to make you

10 comfortable; is that correct?

11

A

I don't think they were trying

12 to make me uncomfortable by pushing that

13 agenda, of jumping in over there, because

14 that would be malicious, and as I said

15 before, I don't think that there were people

16 there that were maliciously trying to make me

17 feel uncomfortable. They just couldn't

18 bridge that gap of understanding, so I think

19 that's the best way to describe it.

20

Q

Okay, so --

21

A

When we got over there, there

22 was a transvestite at the bar that was

23 dressed up, and they -- you know, several of

24 the staff, and I think some of them are in

25 the pictures that we submitted to you about

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2 that night at Neptune's bar when Ray and much

3 of the staff was there on FaceBook, and so a

4 lot of people were in there. It would be

5 easy to identify who was there -- wanted me

6 to get pictures with the transvestite, like

7 it was a little bit of a spectacle. It

8 didn't offend me. It made me feel a little

9 uncomfortable. It made me feel a little

10 uncomfortable that it was taking place in the

11 setting that this is after work, but it's

12 with all my colleagues that I work with, and

13 it was also still in front of my boss, Ray

14 Maynard. That made me feel a little bit

15 uncomfortable.

16

Q

But you were free to excuse

17 yourself from the situation; were you not?

18

A

Not unless I wanted to figure

19 out how I was going to get back to the drop

20 zone by myself.

21

Q

You mean like take a cab?

22

A

I would have had to have done

23 that, but when you jump into -- we already

24 had prearranged rides. You don't typically

25 jump with your credit card, billfolds, and

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2 cellphones when you're jumping over the water

3 in the beach, because there is a good chance

4 that you'll lose that stuff, so I didn't

5 have -- it was free beer. You didn't need

6 any money. You jumped in, stashed your gear

7 in the bag, and had some beer.

8

Then when everybody was done, go

9 back to the drop zone and either stay there

10 and drink some more beer or go home.

11

Q

And that's kind of what you did;

12 jumped in, stashed your stuff in a bag, and

13 had some beer; right?

14

A

That's exactly what I did, and

15 saw Neptune's bar.

16

Q

You just went there that once;

17 correct?

18

A

I went there twice.

19

Q

Oh, you went there again after

20 that?

21

A

Yes.

22

Q

Because it was so horrible?

23

A

No. Because getting to do a

24 beach jump at the end of the day at sunset,

25 skydiving can be kind of like a spiritual

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2 thing for some people. I like sunsets, I

3 like the outdoors, and it's just pretty. So

4 being able to jump in, make a skydive at

5 sunset over the water, it's gorgeous, so why

6 not?

7

Q

So it was so horrible the first

8 time that you decided to try it again?

9

MR. ANTOLLINO: Objection.

10

A

It had nothing to do with the

11 bar. Getting a free beer after a jump,

12 that's nice. It's about the jump.

13

MR. ZABELL: Mark this, please.

14

(Multi-page document consisting

15

of copies of various screen shots from

16

Mr. Zarda's FaceBook page was marked as

17

Defendants' Exhibit C, for

18

identification, as of this date.)

19

Q

I'm going to show you Exhibit C.

20

A

Okay.

21

Q

Take a look at it.

22

A

(Witness complies.)

23

Q

Do you know what that is?

24

A

Without going through each and

25 every single page just flipping through them,

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2 it looks like a bunch of screen shots of

3 FaceBook.

4

Q

Whose FaceBook is this?

5

A

It looks like most of them --

6 well, there's some e-mails in here too from

7 FaceBook. It's mostly FaceBook stuff, and

8 it's my profile and e-mails from a FaceBook

9 account that I have.

10

Q

Who's the bare-chested guy on

11 page 1?

12

A

That's me.

13

Q

In all your splendid glory?

14

A

I don't know what that means.

15

Q

Is that kind of like a cape that

16 you're wearing?

17

A

No, that's a wingsuit.

18

Q

It looks like a little flying

19 squirrel suit.

20

A

For lack of a better word, since

21 the public sees that a lot, that's what they

22 think it is, but that's the slang version.

23 It's -- again, it's a wingsuit.

24

Q

And you like wearing that;

25 right?

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2

A

I like jumping in it.

3

Q

You like more than jumping in

4 it; you like taking your picture in it;

5 right?

6

A

It was a unique prop for that

7 picture.

8

Q

Who was taking your picture that

9 day?

10

A

A photographer.

11

Q

Oh, so you had your picture

12 professionally taken in that outfit?

13

A

I did.

14

Q

Was that just to post on your

15 FaceBook page?

16

A

No. It was actually in trade

17 for me getting a nice photo of pictures and

18 for the photographer to be able to have a

19 subject to take photos of for his personal

20 portfolio.

21

Q

So he said that if you take

22 pictures, if you allow me to take pictures of

23 you for free, all you'll have to do is strip

24 your top down and wear this, for lack of a

25 better term, squirrel suit?

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2

A

No, it wasn't like that. It was

3 just a matter of I wanted to be able to have

4 a photo shoot, and he wanted to be able to

5 have a subject for his portfolio.

6

Q

Are you aware of that picture

7 showing up on any websites?

8

A

Yes, you know I am.

9

Q

What websites have they shown up

10 on?

11

A

I think it would probably be an

12 easier question to say what websites they, at

13 this point, haven't shown up on.

14

Q

Are you happy with all of the

15 websites that that picture has shown up on?

16

A

I think, you know, I'm not happy

17 that the media went to my FaceBook profile

18 and got that picture and put it on the

19 websites, but there certainly could have been

20 worse pictures, like a mug shot that people

21 would get, so I'm glad that it's not that

22 kind of picture.

23

Q

Are there any mug shot pictures

24 of you out there?

25

A

Who knows what kind of pictures

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2 there are in this digital world where

3 everybody's got in iPhone and takes a picture

4 and puts it on FaceBook or e-mails it to

5 somebody. I have no idea what's out there.

6

Q

Well, have you ever been

7 arrested?

8

A

No, I haven't been arrested.

9

MR. ANTOLLINO: Well, hold on a

10

second. I think the question, have you

11

ever been arrested, is improper. You

12

can ask him --

13

MR. ZABELL: Counselor --

14

MR. ANTOLLINO: No, no, no. I'm

15

directing --

16

MR. ZABELL: Counselor,

17

objection to form, and nothing else.

18

MR. ANTOLLINO: I'm going to

19

direct him not to answer, but I will

20

allow the question: Have you ever been

21

convicted?

22

MR. ZABELL: You're smiling as

23

if you're saying something that is

24

absolutely intelligent, and it's not.

25

MR. ANTOLLINO: Okay, I've be

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2

through this before.

3

MR. ZABELL: I don't care what

4

you think you've been through before,

5

and you're oh so successful at them,

6

I'm sure. I get to ask him this

7

question.

8

MR. ANTOLLINO: You do not.

9

Q

Have you been arrested, sir?

10

MR. ANTOLLINO: Don't answer the

11

question.

12

MR. ZABELL: On what basis?

13

MR. ANTOLLINO: On the basis

14

that if an arrest was later resulted in

15

a termination in favor of the accused,

16

it's confidential; okay?

17

MR. ZABELL: No, it's not

18

confidential --

19

MR. ANTOLLINO: It is.

20

MR. ZABELL: -- and if he has

21

been arrested and it has added to his

22

stress, I am absolutely entitled to ask

23

that question.

24

MR. ANTOLLINO: No --

25

Q

So sir, have you been arrested --

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2

MR. ANTOLLINO: I'm not going to

3

let him answer --

4

Q

-- within the last three years?

5

MR. ANTOLLINO: I'm not going to --

6

A

No.

7

MR. ANTOLLINO: -- answer.

8

Q

Thank you.

9

Have you been accused of any

10 crimes in the last three years?

11

MR. ANTOLLINO: Objection to

12

form.

13

A

A speeding ticket or a seatbelt

14 violation?

15

Q

No, no, no, no. You can even

16 have spoken in your car on your cellphone

17 while texting. That's not what I'm

18 interested in.

19

A

I just want to be clear.

20

Q

Okay.

21

A

So, no.

22

Q

Anybody on your website talk to

23 you about molesting people?

24

A

On my website?

25

Q

Yes.

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2

A

My website is DonZarda.com, so --

3

Q

Oh, I'm sorry. On your FaceBook

4 page.

5

A

Okay, I got you. Well, my

6 FaceBook page, that's open game for years,

7 for like two or three years now, and who

8 knows what people put on there, so --

9

Q

What does "trick fuck," mean?

10

A

It's a good question. Oh, okay.

11 I don't see it in here, but now I could think

12 of what it could mean. Let me think of a

13 good way to define that.

14

I think that's just a different

15 way of saying fuck somebody over.

16

Q

Trick fuck means to fuck

17 somebody over?

18

A

If I was going to use that and

19 maybe I have, that's probably what it would

20 have meant. Is there a place --

21

MR. ANTOLLINO: Do you want to

22

refer to something?

23

A

-- that I could look and see --

24

MR. ZABELL: No. Do you want to

25

remain silent?

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2

MR. ANTOLLINO: No.

3

MR. ZABELL: You should. That's

4

your role here today.

5

A

Is there a place where I could

6 see the context of where I might have used

7 that?

8

Q

It's a question based on this

9 exhibit.

10

A

Okay, could I see it?

11

Q

No, I mean, we'll be here a lot

12 later --

13

MR. ANTOLLINO: All right. Let

14

it go.

15

THE WITNESS: Okay.

16

Q

Are there things on your

17 FaceBook page that you turned over to us that

18 you're unhappy with?

19

A

Now, when you say FaceBook

20 pages, which pages?

21

Q

All of this stuff, Exhibit C.

22

A

Exhibit C?

23

Q

Yes, C.

24

A

Well, I haven't had a chance to

25 look through 185 pages.

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2

Q

This is all stuff you turned

3 over to us?

4

A

Oh, did I turn this over to you?

5

Q

Yes, you did. Your lawyer may

6 not have informed you of it, but yes, you

7 have.

8

A

I haven't had a chance to

9 refresh myself on 185 pages of FaceBook

10 material that dates back to 2009.

11

Q

Do you talk about your cat on

12 your FaceBook page or pages?

13

A

I probably have something about

14 my cat.

15

Q

Do you talk about how sad you

16 are on the anniversary of her death?

17

A

I may have said something about

18 that. I guess while I'm sitting here, I

19 might as well just go ahead and --

20

MR. ANTOLLINO: No, no. You

21

might as well just sit, and wait for

22

the question.

23

THE WITNESS: Okay.

24

MR. ANTOLLINO: You'll wait for

25

the question.

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2

THE WITNESS: All right.

3

Q

You don't have to let him yell

4 at you like that.

5

A

It's okay. He's not yelling.

6

Q

He kind of is.

7

Now, there are people who

8 responded to your FaceBook page indicating

9 that they thought you were wrong when you

10 filed your lawsuit; did they not?

11

A

I don't know. That was awhile

12 ago, and I can't recall.

13

MR. ZABELL: Counsel, please

14

stop hitting your client.

15

MR. ANTOLLINO: I'm not hitting

16

my client.

17

MR. ZABELL: It appears as if

18

you might be.

19

MR. ANTOLLINO: I'm not hitting

20

my client. I put his hand -- I put the

21

paper down that he was picking up.

22

You're referring to an exhibit,

23

and you're reading --

24

MR. ZABELL: Counselor, there is

25

not a set of circumstances where it is

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2

professionally appropriate for you to

3

hit your client or talk during this

4

deposition, so please remain silent.

5

MR. ANTOLLINO: I did not hit my

6

client.

7

MR. ZABELL: I'm trying to get

8

you guys out of here at a normal time.

9

MR. ANTOLLINO: All right.

10

Okay, fine. Continue.

11

A

Anyway, so there is so much

12 information that can be put on FaceBook, that

13 goes through FaceBook. To have immediate

14 recollection and knowledge of it is virtually

15 impossible.

16

MR. ZABELL: Let's take a quick

17

break and see if I can get you guys out

18

of here.

19

(Whereupon, a recess was taken

20

from 6:44 p.m. to 6:45 p.m.)

21

MR. ZABELL: I reserve the right

22

to call you back for a deposition on

23

behalf of Mr. Maynard.

24

In addition, I expect to be able

25

to, in the future, call you back for

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2

purposes of questioning you about the

3

various lines of questions that your

4

attorney has directed you not to

5

answer. Barring that, I am shutting

6

the deposition down.

7

MR. ANTOLLINO: I would just

8

like to mark this as Plaintiff's

9

Exhibit A, this would be the Notice of

10

Deposition in which you have noticed,

11

on behalf of Altitude Express and

12

Mr. Maynard, this deposition. I would

13

like the court reporter, if I could --

14

MR. ZABELL: You can't.

15

MR. ANTOLLINO: I'm going to

16

object to your recalling on the grounds

17

that I have your signed Notice of

18

Deposition.

19

MR. ZABELL: What's the date on

20

that deposition notice?

21

MR. ANTOLLINO: December 16,

22

2010, and it hasn't been amended.

23

MR. ZABELL: Okay, December 16,

24

2010, and what's today's date?

25

MR. ANTOLLINO: It might be a

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2

year later, for all I know. It is

3

almost; right?

4

MR. ZABELL: Off the record.

5

(Whereupon, a discussion was

6

held off the record.)

7

MR. ZABELL: This record is now

8

closed.

9

(Time noted: 6:46 p.m.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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388 1

2

ACKNOWLEDGEMENT

3

4 STATE OF NEW YORK )

5

: ss

6 COUNTY OF

)

7

8

I, DONALD ZARDA, hereby certify that I

9 have read the transcript of my testimony

10 taken under oath in my deposition of

11 December 9, 2011; that the transcript is a

12 true, complete and correct record of my

13 testimony; and that the answers on the record

14 as given by me are true and correct.

15

16

__________________________

DONALD ZARDA

17

18

19

20 Signed and subscribed to

21 before me, this day

22 of _______________,20__

23

24 ________________________________

25 Notary Public, State of New York

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2

INDEX TO TESTIMONY

3

4 WITNESS

EXAMINATION BY

PAGE

5 Donald Zarda

Mr. Zabell

4

6

7

EXHIBITS

8 DEFENDANTS'

DESCRIPTION

PAGE

9A
10
11 B
12
13

Four-page document consisting of a copy of Supplemental Response to Requests for Admissions 26

Thirteen-page document

consisting of a copy of

Amended Response to Demand

for Interrogatories

27

14 C 15 16

Multi-page document

consisting of copies of

various screen shots from

Mr. Zarda's FaceBook

page

374

17

18

19

20

21

22

23

24

25

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2

CERTIFICATE

3

I, KAREN M. LaMENDOLA, a Notary Public

4 in and for the State of New York, do hereby certify:

5

THAT the witness whose testimony is

6 hereinbefore set forth, was duly sworn by me;

7 and

8

THAT the within transcript is a true

9 record of the testimony given by said

10 witness.

11

I further certify that I am not

12 related, either by blood or marriage, to any

13 of the parties in this action; and

14

THAT I am in no way interested in the

15 outcome of this matter.

16

IN WITNESS WHEREOF, I have hereunto set

17 my hand this 29th day of December, 2011.

18

19

20 KAREN M. LaMENDOLA
21

22

23

24

25

South Shore Court Reporting (631)-235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 392 of 425 PageID #: 4559

391 1

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ERRATA SHEET

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South Shore Court Reporting (631) 235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 393 of 425 PageID #: 4560

$
$40 [4] - 301:25, 302:10, 318:4, 319:5
'
'06 [1] - 154:8 '07 [1] - 154:8 '09 [1] - 272:9 '10 [2] - 272:9, 312:18 '11 [1] - 312:21 '80s [1] - 329:16
1
1 [1] - 375:11 1,000 [1] - 288:12 10,000 [2] - 320:9, 320:10 10-04334 [1] - 12:21 10-CV-04334 [1] 1:7 100 [11] - 31:5, 31:12, 32:8, 32:20, 53:11, 53:12, 269:12, 279:4, 279:6, 279:7, 279:16 100-degree [1] 188:25 10010 [1] - 2:5 10:15 [1] - 1:12 10:26 [1] - 17:5 10:55 [1] - 17:5 110 [1] - 188:19 11716 [1] - 2:9 11727 [1] - 131:10 11:05 [1] - 28:13 11:10 [1] - 28:13 11:55 [1] - 68:23 11:56 [1] - 68:23 12:21 [1] - 93:10 12:28 [2] - 93:10, 95:8 12:29 [1] - 95:8 13 [1] - 334:17 15 [8] - 67:6, 78:4, 160:19, 160:23, 161:6, 178:7, 195:18, 224:8 15th [2] - 153:13, 160:25 16 [2] - 386:21, 386:23 17 [2] - 131:16, 131:17 170 [2] - 86:3, 86:5

175 [1] - 86:6 18 [3] - 36:12, 36:24, 36:25 18-20 [1] - 2:5 180 [3] - 86:3, 86:5, 86:6 185 [3] - 86:7, 382:25, 383:9 1970 [1] - 54:14 1999 [3] - 54:10, 54:15, 332:9 1:00 [2] - 120:11, 126:4 1:44 [1] - 166:19 1:54 [1] - 166:19 1st [1] - 153:11
2
2 [6] - 73:17, 73:22, 75:6, 75:18, 103:25
2,000 [3] - 145:15, 288:13, 304:11
20 [2] - 301:12, 388:22
2000 [7] - 54:10, 54:15, 99:4, 190:7, 191:12, 332:10
2001 [30] - 56:3, 56:5, 56:14, 56:18, 56:22, 57:2, 57:18, 57:22, 58:14, 58:19, 60:5, 62:18, 62:24, 63:14, 64:21, 65:16, 65:23, 66:22, 78:8, 85:18, 85:19, 86:17, 88:2, 89:15, 107:17, 244:13, 272:9, 285:11, 307:20, 308:13
2002 [2] - 88:12, 191:2
2003 [2] - 191:2, 191:12
2005 [1] - 191:14 2006 [2] - 152:25, 154:5 2007 [4] - 152:25, 191:14, 191:15, 191:22 2008 [12] - 60:8, 61:19, 62:8, 62:11, 65:3, 65:16, 67:6, 68:3, 70:3, 154:11, 154:15, 154:23 2009 [66] - 46:23, 58:5, 58:23, 59:8, 61:18, 65:4, 66:24, 67:2, 67:7, 69:4, 69:9,

70:5, 71:6, 71:15, 73:5, 73:7, 73:17, 75:8, 75:18, 77:18, 78:18, 79:8, 80:19, 81:12, 100:10, 100:15, 102:2, 103:14, 104:22, 105:3, 146:5, 183:15, 244:15, 250:21, 251:7, 251:21, 251:24, 252:2, 285:18, 285:19, 291:11, 292:16, 295:5, 297:5, 298:6, 298:7, 298:16, 298:17, 298:18, 299:16, 300:7, 300:12, 303:3, 310:7, 310:17, 310:20, 329:4, 329:13, 330:3, 330:20, 348:20, 349:22, 350:25, 351:6, 367:22, 383:10
2010 [91] - 36:12, 46:24, 75:23, 76:5, 76:11, 77:16, 77:20, 78:3, 78:4, 79:2, 79:25, 81:17, 81:21, 82:6, 84:2, 100:10, 100:15, 102:2, 125:14, 125:19, 130:16, 130:18, 130:19, 130:25, 131:13, 142:19, 146:3, 146:7, 151:9, 153:9, 153:10, 153:25, 155:6, 158:17, 159:5, 163:4, 163:5, 163:8, 171:24, 183:24, 207:5, 207:10, 208:19, 209:4, 210:19, 212:6, 214:9, 224:5, 224:8, 243:10, 243:11, 244:16, 249:7, 249:20, 249:21, 249:25, 250:7, 250:18, 251:4, 251:5, 251:18, 251:23, 272:10, 272:18, 272:20, 285:22, 291:14, 292:16, 297:7, 297:9, 297:23, 298:17, 298:19, 299:7, 299:17, 300:20, 300:23, 310:7, 310:22, 311:20, 311:25, 312:4, 312:5, 312:25, 313:2, 313:18, 351:7, 367:14, 367:23,

386:22, 386:24 2011 [14] - 1:11,
89:15, 163:5, 178:5, 178:6, 178:7, 188:17, 194:5, 194:13, 194:14, 252:5, 252:7, 388:11, 390:17
20s [1] - 143:23 21 [1] - 2:5 22 [2] - 76:14, 103:14 24 [1] - 76:15 26 [1] - 389:10 27 [1] - 389:13 29th [1] - 390:17 2:00 [2] - 120:12, 126:4
3
3,400 [1] - 145:15 31 [1] - 1:17 312 [1] - 4:13 365 [1] - 287:4 374 [1] - 389:16 3:35 [1] - 235:5 3:59 [1] - 235:5
4
4 [1] - 389:5 400-level [1] - 165:25 420 [1] - 166:5 424 [1] - 166:6 4875 [2] - 1:13, 2:8
5
500 [1] - 288:11 589-7242 [1] - 16:16 599 [2] - 314:5, 314:6 5:38 [1] - 337:16 5:58 [1] - 337:16
6
631 [1] - 16:16 64085 [1] - 4:14 6:09 [1] - 350:14 6:11 [1] - 350:14 6:44 [1] - 385:20 6:45 [1] - 385:20 6:46 [1] - 387:9
8
8 [1] - 190:7

South Shore Court Reporting (631) 235-6218

1
802 [1] - 2:5
9
9 [2] - 1:11, 388:11 901)569-5860 [1] 292:21 97 [4] - 31:5, 31:12, 32:8, 32:20
A
a.m [7] - 1:12, 17:5, 28:13, 68:23
ability [8] - 7:14, 9:13, 17:17, 20:2, 141:8, 155:7, 201:3, 259:8
able [58] - 30:4, 30:19, 30:22, 32:13, 32:24, 33:20, 43:6, 47:3, 48:13, 54:25, 57:13, 72:4, 72:11, 79:21, 87:16, 88:25, 111:13, 111:25, 127:6, 127:22, 143:6, 152:21, 155:4, 162:25, 164:23, 174:17, 193:17, 196:3, 199:9, 200:24, 205:7, 209:24, 210:6, 210:8, 221:19, 225:17, 226:4, 241:5, 249:20, 251:18, 259:9, 272:2, 286:16, 286:18, 288:14, 297:2, 305:10, 311:17, 320:23, 330:4, 353:9, 358:4, 366:21, 374:4, 376:18, 377:3, 377:4, 385:24
about.. [1] - 265:4 above-mentioned [1] - 1:20 abruptly [1] - 171:12 absolute [3] - 9:10, 92:18, 321:4 absolutely [8] - 8:21, 14:19, 25:21, 236:6, 278:13, 326:2, 378:24, 379:22 abstract [1] - 172:5 abstractly [1] 173:25 accept [1] - 185:23 acceptable [1] 51:15 access [2] - 30:5,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 394 of 425 PageID #: 4561

201:2 accessories [1] -
121:21 accident [1] - 352:19 acclimated [1] -
188:23 accommodations
[3] - 146:18, 146:19 according [1] -
334:16 account [3] - 141:15,
163:2, 375:9 accountable [2] -
122:9, 168:16 accounting [1] -
162:24 accuracy [2] -
316:18, 334:14 accurate [6] - 5:21,
124:11, 138:20, 147:22, 147:24, 285:8
accurately [1] - 9:14 accusation [4] 134:16, 168:16, 277:7, 281:22 accusations [5] 8:8, 155:17, 215:3, 252:24, 253:6 accuse [5] - 155:18, 155:21, 156:3, 253:4, 253:10 accused [14] 155:23, 156:9, 156:22, 206:10, 206:12, 215:9, 227:6, 227:23, 252:21, 253:7, 253:12, 275:21, 379:15, 380:9 accusing [5] - 254:9, 254:11, 255:7, 277:3, 359:23 accustomed [1] 188:20 achieved [2] - 305:9, 305:20 acquaintance [1] 294:16 acquaintances [2] 294:18, 294:20 acquired [2] 190:20, 266:14 act [12] - 70:23, 79:10, 79:14, 79:17, 116:19, 116:21, 116:23, 171:5, 283:10, 364:5, 364:21, 365:9 acted [6] - 79:7, 80:13, 80:16, 117:4, 119:25, 277:13

acting [5] - 84:11, 137:19, 228:10, 354:18, 359:7
action [12] - 42:18, 133:21, 212:2, 212:7, 213:2, 220:18, 220:23, 221:17, 244:3, 255:5, 362:9, 390:13
actions [1] - 80:10 activities [2] - 80:3, 184:22 activity [2] - 185:22, 286:9 actual [8] - 129:13, 129:14, 129:17, 129:18, 249:12, 285:8, 303:12, 326:16 ad [2] - 133:20, 212:5 add [3] - 182:13, 199:6, 282:11 added [3] - 106:12, 182:4, 379:21 addendums [1] 129:2 adding [1] - 142:14 addition [1] - 385:24 address [6] - 4:12, 129:13, 129:14, 129:17, 131:7, 241:6 addressing [1] 240:18 adjusted [1] - 188:20 administer [1] - 3:16 administrative [1] 197:22 admissions [3] 25:16, 164:20, 197:20 Admissions [3] 27:3, 27:12, 389:10 admitted [1] - 218:24 admonish [1] - 16:7 admonished [1] 15:20 adult [3] - 85:25, 87:2, 265:25 advance [3] 161:19, 163:4, 164:25 Advanced [3] 244:22, 244:23, 246:9 adversaries [1] 167:16 adversary [4] 12:17, 12:23, 13:10, 364:14 adverse [2] - 220:23, 362:9 advertisement [1] 62:6 advertising [1] -

367:9 advice [3] - 90:10,
113:19, 219:8 advise [1] - 94:4 advised [6] - 12:24,
13:20, 95:21, 96:16, 315:6, 315:12
advising [1] - 94:23 advisor [1] - 153:15 advocate [1] - 208:7 Aeronautical [2] 152:6, 152:8 aeronautical [1] 152:10 affect [10] - 7:14, 9:13, 17:17, 20:7, 20:15, 20:20, 103:21, 106:7, 106:9, 155:7 affected [2] - 86:18, 241:25 aforementioned [1] 131:5 afraid [2] - 64:14, 64:15 afternoon [1] - 73:18 afterwards [1] 294:9 age [1] - 148:3 agenda [1] - 371:13 aggravation [2] 192:7, 192:10 aging [1] - 245:2 agnostic [1] - 353:19 ago [17] - 57:4, 58:4, 63:5, 63:12, 63:18, 98:25, 99:2, 156:6, 216:14, 221:9, 221:10, 255:3, 311:19, 355:21, 361:12, 361:13, 384:12 agree [12] - 33:6, 90:23, 140:15, 140:24, 141:3, 193:23, 202:4, 216:16, 256:8, 316:8, 364:15, 365:3 AGREED [3] - 3:4, 3:9, 3:13 agreed [6] - 67:10, 255:4, 302:3, 309:11, 309:18, 310:4 agreement [1] 201:16 agrees [1] - 202:5 ahead [18] - 9:7, 50:10, 50:23, 59:20, 60:13, 60:25, 62:4, 76:18, 95:17, 115:10, 163:9, 178:23,

181:23, 204:8, 254:18, 268:23, 352:8, 383:19
air [3] - 181:15, 194:18, 322:19
aircraft [13] - 32:23, 33:19, 48:22, 57:16, 143:4, 143:5, 230:23, 231:9, 288:25, 305:15, 317:13, 321:3, 329:21
aircrafts [1] - 317:21 airplane [13] - 57:14, 69:11, 140:17, 150:9, 175:11, 175:19, 175:20, 201:17, 220:20, 229:13, 231:4, 233:6, 307:25 airplanes [1] - 351:8 airport [5] - 129:23, 130:21, 182:5, 196:14, 224:19 Airport [1] - 129:24 alarm [1] - 25:19 alcohol [1] - 98:19 Alex [2] - 105:9, 323:5 all-encompassing [1] - 222:4 allay [6] - 92:17, 140:6, 142:6, 173:15, 176:3, 177:15 allegations [1] 361:15 alleged [2] - 335:4, 361:15 Allen [2] - 105:10, 323:5 allow [8] - 7:24, 10:2, 123:21, 157:22, 158:13, 259:9, 376:22, 378:20 allowed [9] - 15:3, 158:12, 181:10, 287:23, 295:22, 307:18, 308:4, 308:5, 326:19 allowing [1] - 11:13 almost [15] - 47:24, 48:18, 57:7, 109:22, 121:2, 147:19, 147:25, 148:3, 166:5, 185:11, 190:15, 322:14, 338:14, 340:11, 387:3 alone [2] - 93:5, 182:23 ALSO [1] - 2:20 altered [1] - 98:13 alternative [1] - 89:7

South Shore Court Reporting (631) 235-6218

2
altimeter [4] - 303:5, 303:7, 303:9, 304:9
altimeters [1] 303:18
ALTITUDE [1] - 1:8 altitude [7] - 175:20, 317:14, 317:15, 318:18, 319:8, 320:6 Altitude [5] - 5:2, 5:10, 12:18, 315:19, 386:11 altitudes [2] - 304:8, 317:23 amazing [1] - 44:24 Amended [4] - 27:7, 27:15, 334:12, 389:12 amended [1] 386:22 Amendment [2] 92:22, 95:11 amount [12] - 64:22, 182:22, 197:25, 210:4, 252:10, 297:3, 298:3, 300:24, 301:20, 302:2, 302:25, 321:6 AND [3] - 3:4, 3:9, 3:13 anger [1] - 45:2 angles [1] - 226:9 angry [12] - 40:10, 41:3, 41:6, 42:12, 45:2, 83:3, 169:9, 220:24, 221:7, 234:12, 362:10 ankle [17] - 73:8, 73:10, 73:19, 74:10, 74:25, 87:4, 87:8, 87:11, 87:17, 89:17, 105:4, 223:20, 251:11, 251:14, 330:11, 352:12, 352:14 anniversary [1] 383:16 answer [105] - 6:20, 10:3, 12:25, 13:21, 19:6, 19:7, 19:13, 19:17, 19:22, 30:6, 30:13, 34:13, 39:10, 40:15, 46:4, 46:8, 47:9, 47:10, 58:7, 67:21, 68:9, 74:24, 91:6, 92:7, 92:8, 92:11, 92:13, 92:23, 93:22, 93:24, 94:5, 94:11, 94:15, 94:25, 95:2, 95:13, 95:19, 95:20, 95:22, 95:23, 95:24, 96:5, 96:7,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 395 of 425 PageID #: 4562

96:11, 96:14, 96:15, 96:17, 96:25, 97:23, 98:4, 98:9, 98:17, 99:18, 119:7, 124:19, 135:5, 135:6, 136:25, 138:5, 138:11, 138:20, 157:23, 158:14, 158:24, 168:12, 192:16, 193:18, 203:22, 211:20, 229:24, 230:4, 230:9, 242:8, 254:13, 258:14, 265:12, 266:23, 266:24, 268:23, 273:3, 279:19, 280:2, 280:6, 282:9, 284:16, 284:19, 290:3, 290:4, 313:12, 334:22, 335:21, 336:11, 336:17, 336:19, 349:4, 350:20, 356:24, 357:3, 357:12, 378:19, 379:10, 380:3, 380:7, 386:5
answered [12] - 6:19, 48:6, 123:25, 137:10, 212:5, 267:21, 268:7, 268:18, 276:23, 281:20, 282:15, 361:18
answering [9] 95:16, 122:22, 123:2, 123:3, 123:22, 157:16, 157:25, 158:21, 159:2
answers [5] - 5:17, 5:20, 6:6, 6:9, 388:13
anti [2] - 204:24, 245:2
anti-aging [1] - 245:2 anti-gay [1] - 204:24 antiallergy [1] - 97:7 Antollino [5] - 12:17, 13:11, 27:24, 179:5, 179:10 aNTOLLINO [1] 6:22 ANTOLLINO [221] 2:4, 6:17, 7:2, 7:10, 8:3, 8:5, 8:18, 8:23, 9:3, 9:7, 10:6, 10:23, 11:4, 11:23, 12:2, 14:5, 14:20, 14:23, 16:24, 18:13, 19:2, 19:6, 19:13, 19:17, 19:22, 21:16, 25:23, 27:22, 28:16, 28:19, 30:11, 32:11, 34:10,

39:7, 40:15, 46:2, 46:5, 47:12, 58:7, 59:18, 67:21, 68:8, 68:13, 68:18, 76:2, 79:11, 90:21, 90:25, 91:7, 91:10, 92:6, 92:13, 92:20, 93:7, 93:11, 93:17, 93:21, 94:9, 94:17, 95:4, 95:9, 96:4, 96:24, 97:22, 98:3, 98:8, 98:15, 115:9, 119:11, 119:14, 122:21, 122:25, 123:13, 123:16, 124:22, 125:2, 125:7, 135:4, 135:6, 135:10, 137:9, 137:25, 138:13, 139:5, 139:15, 140:23, 142:14, 157:15, 157:21, 158:10, 158:12, 158:24, 165:9, 165:13, 166:20, 167:8, 167:14, 168:10, 172:21, 174:3, 178:22, 179:2, 180:7, 180:13, 203:21, 204:7, 205:20, 206:2, 207:8, 211:19, 211:21, 215:19, 216:9, 217:10, 218:12, 227:10, 229:24, 230:4, 230:9, 233:18, 234:8, 234:19, 234:25, 236:4, 237:22, 243:21, 255:25, 256:4, 259:4, 261:10, 265:11, 266:20, 267:4, 267:14, 267:20, 268:6, 268:10, 268:16, 268:21, 273:3, 276:9, 276:16, 278:6, 278:23, 279:9, 279:12, 280:5, 280:13, 281:6, 281:10, 281:19, 282:12, 284:15, 284:21, 310:8, 313:12, 321:20, 326:24, 327:3, 330:8, 336:9, 337:13, 338:4, 338:25, 339:14, 339:17, 340:8, 345:18, 346:9, 346:13, 349:2, 349:7, 349:15, 350:11, 350:18, 354:22, 355:4, 355:23, 356:3,

356:9, 356:15, 356:17, 356:23, 357:3, 357:8, 357:17, 358:20, 358:24, 359:25, 360:16, 361:17, 362:23, 366:15, 369:6, 374:9, 378:9, 378:14, 378:18, 378:25, 379:8, 379:10, 379:13, 379:19, 379:24, 380:2, 380:5, 380:7, 380:11, 381:21, 382:2, 382:13, 383:20, 383:24, 384:15, 384:19, 385:5, 385:9, 386:7, 386:15, 386:21, 386:25
anyway [4] - 131:21, 205:15, 232:25, 385:11
apart [1] - 264:21 apartment [1] 197:11 apologize [1] 284:22 appear [3] - 85:12, 365:7, 369:14 appearance [3] 121:18, 122:2, 122:4 Apple [1] - 109:18 application [1] 311:7 applied [6] - 85:10, 210:18, 210:20, 213:16, 311:3, 314:4 apply [2] - 213:21, 213:23 appointment [1] 61:21 Appomattox [1] 131:8 APPOMATTOX [1] 131:8 appreciate [4] - 85:5, 85:7, 134:19, 196:2 appropriate [17] 33:3, 70:9, 70:15, 70:17, 70:19, 70:20, 70:22, 77:24, 124:15, 124:23, 125:9, 125:12, 236:19, 237:3, 239:6, 305:10, 385:2 appropriately [2] 237:12, 304:22 approval [3] 111:14, 259:7, 320:19 approved [1] - 314:8

approving [1] 259:2
approximate [1] 285:14
arbitrary [1] - 306:16 area [9] - 35:21, 126:6, 172:25, 173:4, 185:6, 238:7, 254:5, 286:14, 294:7 areas [4] - 209:22, 265:24, 316:10, 316:11 arguing [1] - 256:5 argumentative [1] 350:19 Arizona [1] - 152:13 arrangement [1] 286:4 arrest [1] - 379:14 arrested [6] - 378:7, 378:8, 378:11, 379:9, 379:21, 379:25 arrive [1] - 164:13 Article [1] - 1:17 aside [1] - 104:5 assert [2] - 94:7, 94:8 asserted [1] - 10:13 asserting [1] - 95:9 assessment [1] 33:5 assign [1] - 49:19 assigned [1] - 13:5 assist [3] - 362:21, 363:10, 363:16 associated [1] 172:3 ASSOCIATES [1] 2:7 Association [3] 141:11, 266:15, 317:4 assume [4] - 119:10, 119:11, 119:13, 311:3 assumed [1] 352:23 assuming [2] 263:15, 366:12 assumption [1] 370:24 assumptions [1] 206:13 athletic [2] - 121:9, 121:11 attached [1] - 197:11 attack [1] - 103:17 attempt [4] - 147:3, 239:25, 240:3, 240:7 attend [3] - 152:15, 344:22, 344:24 attending [1] - 154:6

South Shore Court Reporting (631) 235-6218

3
attention [7] - 14:18, 81:2, 83:22, 102:22, 123:11, 289:12, 367:7
attest [1] - 172:2 attire [1] - 15:23 attitude [1] - 76:8 attitudes [1] - 81:24 attorney [36] - 5:2, 5:6, 24:4, 24:6, 24:7, 24:8, 24:11, 24:15, 24:21, 25:2, 28:5, 28:8, 95:21, 96:16, 166:14, 180:4, 218:23, 219:3, 219:8, 219:13, 219:25, 235:25, 237:21, 237:24, 237:25, 238:3, 268:20, 285:2, 315:7, 326:20, 327:17, 336:10, 339:3, 339:5, 363:23, 386:4 Attorney [1] - 2:4 Attorneys [1] - 2:8 attorneys [1] - 3:5 attracted [3] - 52:25, 53:6, 228:4 attractive [1] 271:18 August [9] - 188:2, 188:3, 188:4, 188:6, 188:17, 189:7, 194:4, 194:13, 285:15 authorized [1] - 3:15 available [5] 108:16, 167:5, 221:6, 325:5, 330:3 aviation [4] - 153:5, 159:18, 165:24, 177:18 aware [9] - 19:19, 79:3, 79:6, 208:5, 256:6, 259:17, 259:18, 276:20, 377:6 awful [5] - 191:13, 234:2, 313:10, 313:14, 313:16 awhile [4] - 130:6, 230:12, 269:24, 384:11 awkward [1] - 84:20
B
Bachelor's [1] 153:4
backpack [1] - 97:7 backtrack [1] 219:10

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 396 of 425 PageID #: 4563

bad [9] - 179:5, 179:8, 182:6, 184:9, 184:14, 192:3, 234:3, 293:5, 350:6
badger [1] - 349:3 bag [3] - 125:23, 373:7, 373:12 balance [1] - 249:12 ball [11] - 117:11, 118:8, 118:14, 118:19, 118:22, 118:25, 119:21, 120:6, 120:7, 186:10 banged [1] - 74:11 bank [1] - 109:18 banter [7] - 235:24, 258:7, 258:9, 270:6, 270:13, 270:18, 270:22 bar [13] - 321:5, 366:8, 366:11, 366:13, 366:18, 366:19, 366:21, 367:2, 370:20, 371:22, 372:2, 373:15, 374:11 bare [1] - 375:10 bare-chested [1] 375:10 barrel [1] - 309:7 Barring [1] - 386:5 BASE [3] - 184:25, 185:2, 185:3 baseball [2] 118:17, 119:4 based [4] - 14:24, 134:20, 255:5, 382:8 basis [6] - 92:22, 302:5, 309:12, 309:15, 379:12, 379:13 bathroom [3] 165:10, 166:14, 336:13 bathtub [1] - 352:11 Beach [1] - 152:12 beach [7] - 366:19, 366:21, 366:25, 367:10, 370:20, 373:3, 373:24 Bear [2] - 106:2, 106:5 became [6] - 41:19, 49:16, 50:4, 175:12, 176:16, 176:18 bed [1] - 352:21 beer [16] - 99:23, 325:15, 325:18, 325:20, 326:3, 326:15, 326:16,

326:19, 328:19, 367:9, 373:5, 373:7, 373:10, 373:13, 374:11
beers [2] - 99:14, 99:25
BEFORE [1] - 1:15 began [8] - 22:5, 45:5, 54:10, 79:2, 107:5, 126:4, 195:7, 337:18 begin [5] - 76:10, 76:13, 76:20, 154:16, 190:3 beginning [10] 34:18, 41:14, 56:21, 72:15, 127:12, 130:16, 130:18, 130:19, 161:11, 360:19 begins [1] - 160:19 behalf [5] - 5:10, 207:6, 208:7, 385:23, 386:11 behave [1] - 171:5 behavior [1] - 16:6 behavioral [4] 67:17, 67:18, 67:25, 68:4 behind [5] - 120:12, 126:5, 251:11, 251:17, 324:23 belief [4] - 122:4, 280:17, 280:20, 280:22 belive [1] - 25:15 below [2] - 288:11, 320:9 belt [1] - 206:7 Ben [4] - 71:21, 72:9, 80:25, 240:23 bench [2] - 231:25, 347:15 benches [2] 175:19, 175:22 Benefits [1] - 310:13 benefits [15] - 210:5, 310:12, 310:15, 310:19, 310:22, 310:25, 311:4, 311:7, 313:7, 313:18, 313:21, 314:2, 314:5, 314:12, 314:18 best [13] - 5:24, 57:10, 109:11, 110:8, 120:25, 141:8, 192:5, 193:25, 204:3, 204:6, 242:7, 334:18, 371:19 bet [1] - 15:14 better [33] - 54:3,

99:18, 155:25, 156:13, 156:14, 199:3, 199:12, 199:19, 199:22, 200:4, 200:7, 201:13, 208:14, 209:19, 223:22, 240:25, 246:2, 250:12, 254:22, 255:3, 255:8, 266:21, 277:3, 278:2, 289:7, 317:20, 318:9, 333:14, 341:7, 375:20, 376:25
between [25] - 3:5, 24:10, 24:15, 65:16, 86:3, 86:5, 87:25, 110:4, 117:11, 134:4, 144:9, 145:15, 150:13, 153:11, 161:10, 164:10, 187:16, 196:23, 216:7, 235:25, 258:7, 298:3, 319:3, 320:4, 333:10
beverages [1] 325:10
beyond [7] - 11:2, 158:8, 171:14, 193:19, 234:10, 241:2, 244:9
Bianco [3] - 10:4, 11:3, 12:7
Bianco's [2] - 12:9, 17:6
big [6] - 169:16, 186:7, 188:14, 199:14, 241:11, 264:17
bigger [3] - 278:18, 281:2, 281:3
bilitine [2] - 146:16, 146:17
bilitines [2] - 146:13, 146:16
Bill [1] - 190:15 billfolds [1] - 372:25 birthday [1] - 202:4 bit [51] - 16:11, 40:14, 45:22, 61:25, 72:3, 72:22, 81:2, 83:3, 83:4, 87:4, 87:13, 88:20, 89:18, 105:11, 107:7, 136:23, 141:5, 159:11, 168:5, 169:20, 169:21, 188:22, 198:3, 198:4, 199:25, 201:21, 203:9, 205:22, 210:11, 234:15,

248:5, 264:6, 276:25, 283:16, 286:16, 286:19, 293:24, 293:25, 320:22, 323:14, 341:17, 341:20, 342:3, 347:24, 354:16, 354:23, 354:25, 368:25, 369:2, 372:7, 372:14
black [2] - 249:15, 249:17
blame [1] - 168:14 blamed [1] - 168:7 blanket [2] - 32:15, 258:14 blistering [1] - 224:9 blood [1] - 390:12 blue [1] - 103:24 Board [2] - 243:24, 282:7 board [2] - 102:12, 245:23 bobbling [1] - 352:4 bods [1] - 368:4 body [4] - 203:12, 203:18, 205:10 Bohemia [2] - 1:13, 2:9 boobs [2] - 264:17, 264:20 boogie [3] - 327:22, 329:18, 329:19 boogie-type [1] 327:22 book [2] - 97:2, 164:23 booked [1] - 161:19 books [2] - 249:10, 250:10 boot [1] - 73:25 borderline [2] 240:6, 290:21 boring [1] - 202:18 born [4] - 54:13, 54:14, 55:13, 55:14 boss [1] - 372:13 bother [4] - 18:5, 31:8, 31:9, 370:23 bothered [2] 258:12, 370:21 bothers [1] - 276:14 bottle [2] - 342:13, 342:14 bound [1] - 303:13 boundary [1] - 239:7 Box [2] - 4:13, 129:16 boxes [3] - 107:15, 107:16

South Shore Court Reporting (631) 235-6218

4
boyfriend [11] 37:20, 114:16, 135:14, 136:4, 177:8, 201:25, 202:8, 202:9, 203:15, 204:22, 228:18
boyfriend's [1] 275:24
boys [3] - 260:9, 260:14, 260:15
brain [1] - 53:19 brainer [1] - 304:12 brains [1] - 142:12 Brandon [2] - 66:4, 66:17 Brazilian [2] - 260:9, 260:14 brazilian [1] - 260:15 break [31] - 9:24, 14:17, 16:13, 17:3, 68:14, 68:17, 68:24, 73:10, 79:15, 87:11, 161:14, 164:10, 165:10, 166:15, 168:4, 174:10, 174:11, 187:19, 199:24, 227:21, 235:6, 235:23, 236:23, 257:18, 288:21, 336:13, 336:20, 339:16, 339:18, 350:12, 385:17 breakdown [1] 302:12 breaking [3] - 141:9, 193:24, 320:10 breath [1] - 181:15 breathing [1] - 260:2 Brian [8] - 57:5, 57:25, 66:14, 214:3, 260:22, 272:6, 272:22, 272:25 bridge [1] - 371:18 brief [1] - 69:2 briefing [2] - 35:25, 36:6 briefly [2] - 281:22, 361:7 bright [2] - 120:9, 188:14 bring [9] - 40:23, 100:16, 100:24, 102:21, 140:19, 239:25, 325:15, 325:18, 338:23 bringing [4] - 202:2, 260:23, 261:22, 362:8 brings [2] - 177:24, 178:5

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 397 of 425 PageID #: 4564

broad [3] - 109:23, 115:14, 128:8
broadcast [1] - 309:5 broke [11] - 73:8, 73:19, 74:20, 87:7, 87:17, 105:4, 113:10, 174:7, 251:10, 251:15, 352:12 broken [13] - 74:12, 74:16, 74:20, 87:4, 89:17, 246:17, 313:10, 313:14, 348:8, 348:21, 349:20, 352:4, 352:14 brought [16] - 38:20, 38:21, 38:24, 40:22, 47:18, 62:18, 81:23, 171:8, 172:14, 177:15, 221:22, 240:16, 263:17, 263:20, 329:22, 353:19 BS [1] - 217:25 Bs [1] - 183:21 building [5] - 44:10, 44:14, 45:3, 120:13, 126:5 buildings [1] 146:17 buildup [1] - 179:22 built [1] - 60:2 bulging [1] - 264:17 bunch [7] - 49:23, 99:13, 217:25, 352:3, 368:2, 368:4, 375:2 bunkhouses [1] 146:18 bureaucracy [1] 315:14 Business [1] 159:11 business [39] - 58:5, 74:22, 114:18, 114:20, 159:12, 159:21, 159:22, 159:24, 190:9, 197:10, 219:6, 222:7, 222:25, 244:17, 244:21, 246:8, 246:15, 247:18, 247:22, 248:13, 248:18, 248:22, 249:25, 250:3, 250:5, 250:7, 250:9, 250:17, 286:25, 287:2, 311:8, 311:12, 311:15, 311:17, 311:21, 368:16 business's [1] 248:14

busted [1] - 330:11 busy [8] - 144:6, 148:22, 194:11, 286:17, 286:22, 299:24, 300:17, 351:22 buy [1] - 163:3 BY [3] - 2:10, 4:7, 389:4 by-language [1] 239:9
C
cab [1] - 372:21 calendar [2] 108:11, 143:23 California [5] 146:6, 146:11, 149:25, 150:18, 150:25 Callanan [2] 226:18, 282:17 calm [8] - 149:4, 149:8, 149:9, 205:5, 208:8, 208:10, 221:8, 228:21 calmed [2] - 228:23, 229:2 camera [4] - 14:8, 32:25, 33:24 cameraman [2] 33:19, 220:21 cameramen [1] 43:4 Campbell [3] - 263:6, 263:11, 274:4 campuses [1] 152:12 can't.. [1] - 159:14 canes [1] - 348:15 cannot [8] - 24:8, 62:10, 119:6, 178:14, 186:13, 321:2, 321:3, 325:23 cap [5] - 120:5, 120:6, 120:7, 125:23, 126:17 capable [1] - 316:2 cape [1] - 375:15 capital [1] - 249:19 car [2] - 352:19, 380:16 card [2] - 163:6, 372:25 cards [1] - 34:4 care [3] - 151:16, 179:6, 379:3 careful [1] - 90:8

Caribbean [2] 161:18, 164:9
Carmen [4] - 82:25, 83:13, 84:12, 84:15
carried [1] - 90:9 carry [2] - 19:15, 189:25 casa [1] - 329:17 case [24] - 4:23, 11:9, 13:5, 14:4, 45:13, 53:13, 113:17, 147:13, 155:17, 164:19, 178:25, 181:12, 197:14, 198:13, 198:16, 198:23, 202:23, 216:22, 225:9, 254:24, 314:17, 314:25, 321:14, 324:6 cast [11] - 73:24, 275:9, 344:11, 344:14, 344:18, 344:19, 344:23, 346:3, 346:7, 347:14, 350:25 casted [2] - 73:20, 73:23 casts [1] - 349:21 casual [3] - 237:16, 237:18, 256:24 cat [21] - 103:16, 103:18, 105:8, 105:12, 106:3, 106:12, 106:22, 106:24, 106:25, 107:6, 107:7, 107:9, 107:12, 107:13, 107:14, 107:15, 107:16, 107:17, 107:18, 383:11, 383:14 Cat [8] - 105:15, 105:18, 105:19, 106:6, 107:13, 108:9, 189:13, 189:14 cat's [1] - 105:14 catch [1] - 118:19 category [2] - 71:9, 127:22 Catholic [5] - 353:18, 353:20, 354:2, 354:8, 354:15 catholic [1] - 354:10 cats [1] - 105:12 cattery [1] - 106:21 caught [5] - 128:23, 196:24, 252:3, 308:17, 308:22 caused [2] - 201:23, 243:19

causing [4] - 180:22, 197:14, 201:18, 241:6
caution [3] - 24:3, 24:5, 26:2
ceiling [1] - 320:8 cellphone [15] 22:5, 22:8, 262:9, 262:11, 262:15, 262:19, 262:21, 262:23, 263:4, 263:8, 263:14, 292:15, 292:18, 293:2, 380:16 cellphones [2] 353:14, 373:2 cellulite [1] - 245:5 center [4] - 129:23, 195:15, 213:19, 337:22 Center [10] - 55:22, 56:6, 56:24, 132:10, 142:20, 142:24, 146:12, 213:25, 214:19, 214:22 centers [2] - 55:20, 209:20 CEO [1] - 226:2 certain [6] - 64:6, 64:22, 85:10, 99:6, 118:9, 122:10 certainly [12] - 78:17, 79:5, 94:4, 105:3, 154:8, 164:7, 179:11, 206:14, 241:10, 249:15, 282:21, 377:19 certificates [1] 316:3 certification [1] - 3:7 certify [3] - 388:8, 390:4, 390:11 chain [1] - 101:2 chambers [2] 12:10, 17:7 chance [5] - 180:4, 193:11, 373:3, 382:24, 383:8 change [4] - 100:7, 188:21, 205:16, 334:20 CHANGE [10] 391:6, 391:8, 391:10, 391:12, 391:14, 391:16, 391:18, 391:20, 391:22, 391:24 changed [2] - 74:25, 102:14 changes [1] - 391:3 changing [1] - 74:24 characterization [10]

South Shore Court Reporting (631) 235-6218

5
- 32:19, 39:8, 48:25, 50:13, 51:12, 81:7, 211:22, 348:9, 356:18, 362:24
characterize [9] 21:3, 21:6, 29:10, 30:14, 54:19, 73:5, 99:10, 193:14, 235:24
characterizes [1] 168:11
characters [1] 81:20
charge [1] - 42:13 charges [1] - 6:7 check [6] - 40:10, 77:3, 112:16, 247:23, 277:12, 277:14 check-up [1] - 77:3 checked [1] - 112:13 checks [2] - 32:22, 33:3 Cherry [1] - 366:14 chested [1] - 375:10 Chicagoland [8] 132:10, 132:11, 132:17, 142:20, 142:22, 142:24, 210:23, 215:5 chief [3] - 102:16, 208:3, 269:22 child [2] - 53:17, 263:17 children [1] - 263:20 choice [3] - 192:5, 224:25, 331:3 choose [2] - 24:16, 330:25 chose [1] - 141:25 chronologically [1] 46:15 chute [2] - 305:11, 305:13 cigarette [1] - 91:18 cigarettes [2] 91:20, 91:21 Circle [1] - 186:3 circles [2] - 95:14, 96:10 Circuit [1] - 11:10 circumstance [2] 202:6, 364:19 circumstances [2] 109:2, 384:25 cited [1] - 94:22 City [7] - 248:3, 248:7, 299:14, 299:19, 299:22, 300:5, 300:11 city [1] - 132:13 Civil [12] - 1:18, 7:20,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 398 of 425 PageID #: 4565

13:23, 124:3, 124:9, 124:16, 125:6, 237:21, 237:24, 237:25, 238:3, 238:8
civilized [1] - 17:19 claim [2] - 226:23, 235:10 claims [5] - 9:8, 338:3, 338:23, 339:24, 340:3 clarify [3] - 138:12, 150:4, 326:25 class [10] - 152:24, 159:14, 159:15, 159:19, 159:24, 161:5, 182:23, 183:5, 184:4 classes [38] 152:20, 153:8, 153:10, 153:12, 153:19, 153:22, 155:8, 158:18, 158:19, 159:6, 159:7, 159:9, 160:2, 160:6, 160:13, 160:17, 160:19, 165:8, 165:15, 165:16, 165:19, 165:20, 165:21, 166:9, 177:18, 177:19, 177:22, 179:13, 181:13, 182:5, 182:14, 183:8, 184:4, 195:9, 195:20, 196:16, 198:2, 198:7 classroom [5] - 35:6, 35:12, 35:20, 45:5 cleaner [1] - 325:8 clear [19] - 8:2, 8:4, 41:20, 51:2, 57:3, 77:3, 91:9, 136:2, 157:22, 158:5, 176:25, 239:19, 244:15, 271:3, 288:9, 321:19, 362:10, 371:2, 380:19 cleared [2] - 76:10, 76:12 clearly [6] - 35:16, 100:22, 138:19, 178:24, 269:13, 278:25 clerk [1] - 13:4 client [18] - 9:25, 11:2, 11:5, 13:21, 15:25, 18:14, 95:5, 123:24, 166:24, 168:24, 173:7, 284:18, 327:9, 384:14, 384:16,

384:20, 385:3, 385:6 climbing [2] - 86:8,
86:9 close [16] - 33:20,
47:14, 48:22, 51:14, 55:9, 85:24, 113:13, 127:9, 131:17, 131:18, 174:25, 175:6, 175:15, 288:16, 322:21, 323:7
close-quarters [1] 127:9
closed [2] - 347:4, 387:8
closely [1] - 45:18 closer [2] - 48:23, 143:21 closest [1] - 323:2 closeted [1] - 55:4 clouds [6] - 288:11, 288:12, 288:13, 319:10, 319:18, 320:7 cloudy [1] - 319:11 clove [2] - 91:16, 91:20 cloves [3] - 91:21, 91:22, 91:24 club [1] - 121:23 clubs [2] - 298:22, 298:24 cocaine [2] - 97:15, 98:2 code [2] - 131:7, 131:9 cognitive [1] - 53:18 Coke [2] - 325:14, 347:15 cold [4] - 106:20, 151:18, 151:22, 233:7 colleague [1] - 29:12 colleagues [4] 64:23, 81:14, 81:19, 372:12 collect [2] - 310:6, 313:6 collectively [2] 290:19, 290:23 college [1] - 339:10 colloquy [3] - 12:8, 17:8, 22:6 comfortable [10] 102:18, 140:8, 203:18, 205:7, 237:19, 239:17, 240:18, 273:12, 290:13, 371:10 coming [20] - 24:23, 40:20, 41:11, 60:11, 60:25, 76:24, 77:18, 77:20, 84:21, 85:6,

139:19, 151:13, 196:25, 200:3, 200:6, 231:10, 287:8, 291:18, 320:3, 346:5
command [1] - 101:2 comment [7] - 117:7, 125:8, 127:6, 205:3, 258:16, 261:24, 345:24 commented [7] 33:9, 120:5, 120:18, 120:19, 120:22, 123:9, 123:12 comments [13] 121:6, 128:6, 258:3, 258:6, 264:7, 264:23, 268:19, 343:18, 343:19, 343:22, 343:25, 344:3, 344:9 commercial [2] 146:13, 149:23 commitment [1] 154:7 committed [1] 154:16 committing [1] 283:10 common [2] 221:19, 351:4 communities [1] 64:6 community [3] 189:24, 215:11, 259:16 Comp [19] - 223:23, 224:11, 225:11, 226:21, 227:3, 234:13, 235:9, 243:24, 278:5, 278:9, 278:22, 279:22, 280:12, 280:16, 280:18, 280:23, 282:3, 282:7, 315:2 company [7] - 195:3, 195:11, 226:3, 246:13, 249:7, 312:3, 312:25 compared [1] - 370:4 Compensation [4] 233:16, 243:19, 310:12, 310:14 competitor [2] 55:23, 214:2 complain [12] 135:3, 139:14, 168:18, 233:2, 233:3, 289:22, 289:25, 290:7, 290:10, 290:11, 336:3, 336:8 complained [26] -

43:19, 135:14, 136:6, 136:14, 137:4, 137:7, 139:4, 139:9, 139:12, 139:13, 139:18, 142:8, 142:10, 156:17, 156:19, 157:11, 157:12, 199:5, 215:2, 232:16, 232:21, 232:24, 235:19, 285:7, 354:18, 358:22
complaining [4] 135:16, 135:18, 263:21, 359:6
complaint [43] 37:22, 38:2, 39:6, 39:23, 135:19, 135:21, 135:25, 136:3, 137:12, 137:19, 137:22, 138:8, 138:21, 139:6, 156:25, 157:2, 168:8, 170:17, 170:21, 204:19, 217:5, 217:7, 217:13, 242:11, 253:16, 254:3, 256:3, 256:9, 275:23, 275:24, 277:2, 277:13, 285:8, 290:13, 307:20, 335:15, 336:25, 355:2, 355:5, 356:13, 359:2, 360:14
complaints [14] 100:12, 100:17, 100:25, 215:18, 220:16, 220:25, 233:14, 335:4, 335:9, 335:12, 335:17, 335:22, 335:25, 337:7
complete [3] 201:16, 291:20, 388:12
completed [1] 302:6
completely [11] 10:19, 70:9, 70:15, 75:22, 124:11, 169:11, 232:8, 232:14, 237:11, 243:4, 295:19
complex [2] - 113:25 complicated [6] 191:25, 192:4, 193:15, 302:12, 314:12, 320:23 complies [2] - 22:12, 374:22 composure [1] 44:11

South Shore Court Reporting (631) 235-6218

6
compressed [4] 152:18, 164:16, 165:7, 182:25
compromise [5] 11:6, 11:7, 11:11, 11:18, 12:4
computer [10] 49:17, 109:19, 128:24, 152:16, 292:5, 303:4, 303:7, 303:9, 304:3
computers [1] 195:5
comradery [5] 64:22, 64:24, 64:25, 148:7, 305:2
concentrate [1] 155:7
concept [1] - 72:7 concern [1] - 289:12 concerned [6] 222:17, 224:12, 254:25, 266:9, 266:11, 266:16 concerns [2] - 92:17, 223:20 concluded [1] 18:12 conclusion [2] 17:22, 151:8 condensed [1] 276:25 condescending [2] 15:21, 16:6 condition [1] - 121:8 conditioning [1] 194:18 conditions [11] 67:12, 67:15, 67:17, 67:18, 288:7, 289:2, 289:4, 290:14, 290:21, 291:6, 296:25 condo [4] - 114:8, 114:15, 131:4, 299:11 conduct [1] - 199:6 conducted [1] - 24:2 conducting [1] - 5:9 conference [1] 27:25 conferred [2] 224:18, 290:16 confide [1] - 102:25 confidential [3] 92:16, 379:16, 379:18 confirm [1] - 124:10 confirmed [1] 74:14 conflict [2] - 266:12, 269:20 conform [1] - 116:18

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 399 of 425 PageID #: 4566

confronting [1] 84:23
confused [3] - 57:23, 174:9, 354:16
confusing [1] 354:24
conjecture [1] 63:25
connect [1] - 186:13 connotation [3] 364:10, 364:17, 364:18 consequences [2] 308:16, 308:18 consider [4] 190:12, 190:16, 191:19, 364:2 considered [4] 97:9, 97:18, 183:2, 239:5 consist [1] - 133:17 consistent [6] - 88:2, 88:8, 100:3, 137:23, 138:23, 139:2 consisting [6] 26:25, 27:7, 374:14, 389:9, 389:12, 389:14 contact [5] - 55:11, 60:13, 62:7, 65:15, 76:22 contacted [1] - 65:20 contemporaneous [1] - 129:6 context [8] - 4:23, 120:2, 261:2, 261:3, 338:8, 364:11, 364:18, 382:6 continually [1] 15:21 Continue [1] 385:10 continue [16] - 7:22, 15:12, 37:6, 37:23, 38:11, 38:25, 42:2, 47:4, 48:24, 61:20, 71:22, 76:16, 158:15, 208:20, 268:25 continued [2] 104:21, 123:23 continuing [1] - 39:2 contradiction [1] 13:22 contrary [1] - 257:25 control [9] - 258:19, 258:21, 258:24, 259:11, 259:19, 280:21, 280:22, 282:4, 305:21 controls [3] - 259:14, 259:15, 320:25

convenient [1] 294:3
conversation [25] 4:22, 41:15, 44:15, 46:11, 109:10, 109:22, 109:25, 110:18, 112:20, 112:23, 113:4, 113:7, 115:12, 116:6, 133:10, 133:14, 133:16, 137:14, 142:25, 177:12, 208:7, 208:13, 234:16, 264:8, 354:7
conversations [5] 108:19, 108:23, 109:3, 113:2, 186:18
convey [2] - 228:7, 228:16
conveyed [1] 136:22
conveyer [1] - 206:7 convicted [1] 378:21 convince [1] - 207:7 convinced [1] 170:12 cool [1] - 367:4 copies [4] - 26:21, 28:9, 374:15, 389:14 copy [9] - 7:20, 16:2, 17:24, 27:2, 27:7, 166:25, 338:8, 389:9, 389:12 Coram [7] - 130:25, 131:2, 131:9, 294:6, 296:9, 300:10, 322:15 corner [2] - 187:6, 299:10 corporation [1] 315:20 correct [214] - 4:19, 4:20, 4:23, 4:24, 5:3, 5:7, 5:14, 5:15, 5:17, 14:4, 18:23, 20:15, 20:21, 21:18, 26:8, 28:22, 29:13, 31:24, 33:12, 33:14, 45:10, 52:19, 56:15, 56:16, 57:18, 58:24, 58:25, 59:3, 59:4, 61:16, 61:17, 63:2, 64:23, 65:4, 66:24, 67:4, 69:4, 69:5, 73:2, 73:20, 74:13, 75:18, 75:19, 76:6, 77:24, 78:20, 80:6, 80:20, 81:3, 82:8, 84:15, 85:18, 89:16, 101:15, 102:19, 102:22,

103:2, 104:10, 112:24, 112:25, 131:14, 132:21, 139:4, 139:10, 139:14, 140:18, 142:3, 142:6, 142:21, 150:20, 150:21, 150:23, 150:24, 151:3, 151:4, 151:10, 152:2, 153:19, 154:17, 154:25, 156:17, 157:2, 157:11, 161:8, 162:8, 165:16, 168:9, 172:9, 172:20, 173:2, 173:9, 173:10, 173:17, 173:18, 174:2, 174:14, 174:21, 175:8, 175:9, 176:8, 177:5, 177:13, 177:20, 192:24, 193:12, 194:6, 195:20, 195:21, 197:16, 208:21, 215:18, 216:8, 216:19, 228:11, 228:12, 229:2, 229:6, 230:15, 232:16, 235:20, 236:2, 237:9, 238:5, 238:25, 239:5, 239:22, 239:23, 241:2, 241:5, 243:20, 244:11, 253:6, 254:11, 254:16, 254:20, 256:7, 259:3, 259:23, 275:11, 275:25, 286:25, 288:18, 292:3, 292:12, 292:16, 292:23, 293:2, 293:8, 294:4, 296:20, 302:3, 302:7, 304:23, 305:19, 306:2, 307:9, 308:10, 308:23, 309:13, 309:15, 309:18, 310:4, 311:4, 311:16, 311:21, 316:19, 316:25, 318:5, 318:6, 319:5, 319:15, 320:14, 321:12, 330:7, 330:16, 339:25, 342:24, 343:4, 343:10, 343:12, 344:19, 345:8, 345:13, 345:17, 351:15, 351:24, 352:5, 354:21, 355:11, 356:16, 357:2, 357:5, 357:7, 357:16, 358:23,

360:21, 360:25, 361:6, 361:10, 361:16, 362:17, 362:22, 362:25, 363:3, 363:5, 363:12, 363:13, 365:7, 368:22, 370:12, 371:10, 373:17, 388:12, 388:14
correlation [1] 369:15
correspondence [2] - 129:15, 238:12
corroborate [2] 170:11, 277:5
corroborated [3] 212:13, 237:7, 255:4
corroborating [1] 284:6
corroboration [1] 277:2
cost [1] - 355:25 counsel [2] - 207:24, 234:19 Counsel [8] - 6:15, 7:16, 13:19, 14:6, 17:19, 68:25, 219:7, 384:13 Counselor [5] 124:2, 276:21, 378:13, 378:16, 384:24 counselor [4] 68:10, 142:16, 187:21, 284:17 country [7] - 110:21, 180:12, 189:22, 252:10, 286:22, 309:9, 348:14 counts [2] - 304:19, 304:20 COUNTY [1] - 388:6 couple [20] - 47:18, 76:14, 82:4, 97:15, 99:14, 99:24, 100:7, 148:23, 151:2, 178:10, 183:21, 184:12, 195:14, 198:19, 202:14, 294:19, 298:11, 300:13, 307:11, 330:13 coupled [1] - 233:15 course [12] - 32:17, 54:11, 60:2, 114:6, 126:21, 130:7, 153:2, 165:5, 166:7, 173:25, 219:24, 292:24 courses [5] - 165:3, 165:4, 165:6, 165:25

South Shore Court Reporting (631) 235-6218

7
coursework [1] 183:25
COURT [2] - 1:2, 336:15
court [6] - 18:18, 23:4, 110:11, 112:6, 336:24, 386:13
Court [4] - 1:21, 3:18, 6:11, 131:8
courtesy [1] - 221:19 courts [1] - 340:15 cover [2] - 219:10, 348:4 covered [5] - 39:21, 244:12, 268:2, 335:7, 335:8 covertly [3] - 111:13, 111:17, 111:18 coworker [2] - 83:18, 263:17 coworkers [16] 63:2, 65:2, 65:23, 79:23, 80:5, 83:10, 83:25, 84:14, 85:6, 107:10, 241:13, 260:13, 261:6, 340:23, 342:10, 370:8 cracked [3] - 74:18, 201:17, 206:16 cracking [2] 203:16, 206:16 crappy [4] - 147:13, 290:20, 295:20, 350:15 crazy [3] - 71:7, 71:8, 201:11 created [2] - 198:3, 198:10 credit [2] - 163:6, 372:25 crimes [1] - 380:10 criminally [1] - 95:25 criteria [2] - 314:15, 314:16 criticisms [1] - 8:8 critiquing [1] 304:14 cross [1] - 334:25 crowd [3] - 371:6, 371:8 crowded [1] - 82:21 crude [1] - 324:22 cruise [33] - 144:11, 144:12, 144:15, 144:24, 144:25, 145:2, 145:7, 145:9, 145:10, 145:12, 145:13, 145:20, 146:8, 146:9, 147:7, 147:15, 147:17,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 400 of 425 PageID #: 4567

150:20, 150:22, 151:5, 151:8, 161:16, 161:17, 161:18, 161:20, 162:4, 162:9, 162:10, 162:18, 163:21, 164:9, 164:25, 178:12
cruised [2] - 162:2, 162:7
cruises [5] - 145:22, 163:3, 163:17, 178:10, 178:11
crunch [1] - 279:14 crutch [1] - 352:10 crutches [12] 87:19, 330:5, 330:6, 344:25, 347:14, 348:15, 348:21, 349:21, 351:20, 351:21, 352:14, 353:12 cry [1] - 105:4 crying [4] - 104:23, 104:24, 105:2, 105:6 cubbyhole [1] 125:24 cued [1] - 353:7 cues [1] - 240:22 culmination [2] 215:23, 215:24 culpable [3] - 270:8, 283:9, 284:5 culturally [1] 326:14 culturally-wide [1] 326:14 cumulonimbus [1] 319:22 current [2] - 4:12, 178:7 Curt [14] - 60:6, 65:11, 66:16, 71:4, 71:5, 71:9, 78:13, 261:20, 261:23, 262:4, 273:9, 273:10, 273:24 customer [32] - 39:6, 57:12, 109:17, 140:9, 140:11, 140:13, 141:2, 141:7, 157:10, 157:12, 169:2, 169:18, 170:8, 172:25, 173:4, 206:24, 215:18, 216:7, 216:12, 216:17, 216:18, 216:20, 216:22, 231:4, 231:11, 253:17, 254:2, 277:18, 285:6,

294:16, 352:3, 352:16 customer's [2] -
231:23, 277:13 customers [27] -
37:19, 38:16, 40:4, 48:20, 50:7, 140:19, 141:16, 150:8, 168:18, 172:15, 201:9, 206:20, 220:17, 222:16, 222:23, 223:5, 233:2, 243:13, 253:6, 271:19, 294:9, 294:24, 322:18, 325:20, 340:18, 348:7, 351:23
customers' [1] 201:15
cut [8] - 88:16, 88:18, 151:19, 187:19, 195:19, 195:25, 196:2
CV [1] - 12:19
D
d/b/a [1] - 1:8 daily [2] - 79:16, 79:21 Dallas [11] - 130:12, 188:8, 188:9, 188:16, 189:7, 190:7, 196:19, 196:20, 248:2, 248:9 damages [2] - 9:9, 252:19 damn [1] - 31:12 dangerous [1] 290:22 dark [3] - 35:13, 44:8, 44:14 date [10] - 27:5, 27:10, 73:14, 78:5, 102:13, 294:17, 294:23, 374:18, 386:19, 386:24 dates [4] - 144:17, 272:3, 295:6, 383:10 daylight [2] - 300:18, 300:25 days [36] - 37:13, 76:14, 106:20, 107:3, 125:17, 125:19, 128:14, 129:7, 147:11, 147:12, 147:16, 150:23, 153:15, 167:2, 188:25, 221:10, 224:6, 287:4, 287:11, 287:24, 295:8, 295:14, 295:17,

296:18, 296:19, 301:6, 322:2, 322:3, 322:4, 322:5, 322:6, 322:7, 323:25, 361:12
Daytona [1] - 152:12 dead [2] - 184:16, 184:19 deal [11] - 15:25, 163:12, 163:14, 167:16, 182:14, 185:25, 225:23, 233:24, 241:11, 242:6, 242:13 dealing [2] - 181:12, 186:2 dealt [3] - 101:4, 113:24, 370:22 death [1] - 383:16 decade [4] - 57:4, 58:4, 63:12, 63:18 decades [1] - 255:12 December [7] 161:7, 196:15, 287:7, 386:21, 386:23, 388:11, 390:17 december [1] - 1:11 decent [1] - 32:6 decided [2] - 143:14, 374:8 decision [3] 279:24, 291:9, 320:15 decisions [6] 56:20, 113:11, 219:6, 226:5, 226:13, 340:15 dedicated [1] - 148:4 deem [1] - 8:15 deemed [1] - 201:17 deems [1] - 305:10 Defendants [3] - 1:9, 1:17, 2:8 DEFENDANTS' [1] 389:8 Defendants' [6] 27:4, 27:9, 27:13, 27:17, 334:5, 374:17 defense [4] - 83:11, 83:13, 84:15, 85:6 define [8] - 43:25, 53:8, 111:8, 163:19, 163:20, 262:16, 310:10, 381:13 defined [1] - 31:25 defining [1] - 53:9 definitely [3] - 90:15, 154:18, 319:24 definition [1] - 52:22 definitions [1] 341:4 definitively [1] 206:3

degree [1] - 154:3 degrees [1] - 188:19 delayed [1] - 187:18 deliver [1] - 54:24 Demand [4] - 27:8, 27:15, 334:12, 389:12 demands [2] 182:19, 197:19 demeaning [2] 52:3, 52:6 denied [6] - 6:25, 43:6, 201:2, 211:24, 212:6, 363:18 denigrate [1] - 8:7 deny [1] - 124:18 denying [1] - 133:20 dependent [1] 316:13 deploy [3] - 305:11, 305:13, 305:18 deponent [1] - 12:24 deponent's [1] - 22:8 deposed [3] - 23:14, 359:4 deposing [1] - 13:12 deposit [1] - 163:7 Deposition [2] 386:10, 386:18 deposition [53] 3:14, 5:10, 6:10, 8:12, 8:20, 12:16, 12:23, 13:12, 14:12, 15:12, 22:17, 23:17, 23:21, 23:24, 24:2, 24:21, 24:24, 25:3, 25:11, 25:13, 26:17, 28:22, 29:2, 29:5, 29:7, 30:3, 30:8, 31:11, 50:17, 94:18, 124:13, 124:21, 125:11, 134:23, 135:2, 136:8, 167:6, 167:22, 167:24, 168:7, 169:21, 236:23, 247:13, 355:16, 359:10, 360:9, 360:19, 385:4, 385:22, 386:6, 386:12, 386:20, 388:10 depositions [3] 23:2, 166:22, 196:25 depressed [3] 148:11, 148:14, 148:16 derisive [2] - 8:7, 125:8 derogatory [4] 49:15, 51:25, 239:14, 364:16

South Shore Court Reporting (631) 235-6218

8
describe [1] - 371:19 described [1] - 371:4 describing [1] 192:5 DESCRIPTION [1] 389:8 designate [1] - 92:16 despite [1] - 298:11 detail [4] - 115:12, 115:20, 214:21, 362:4 details [3] - 34:23, 114:22, 221:11 detection [2] - 309:2, 309:4 determine [4] - 9:15, 52:5, 284:13, 304:22 detract [1] - 199:6 devastating [1] 185:7 developed [1] - 81:9 development [1] 53:19 dialogue [2] 150:17, 224:3 diaries [1] - 128:12 diary [1] - 128:9 dick [2] - 83:15, 84:12 dictate [1] - 300:3 dictionary [2] 52:23, 53:8 die [2] - 106:14, 184:21 died [3] - 108:9, 182:2, 185:3 Diego [1] - 145:5 difference [5] 31:14, 45:22, 118:24, 333:10, 341:11 different [38] - 6:10, 30:24, 45:10, 52:16, 81:24, 81:25, 94:18, 112:8, 116:7, 118:20, 139:17, 174:7, 180:14, 198:20, 203:24, 241:22, 254:9, 267:12, 267:15, 269:21, 291:3, 300:22, 300:23, 302:16, 302:24, 302:25, 317:21, 317:22, 317:23, 333:12, 352:9, 352:17, 365:11, 365:12, 365:15, 365:18, 369:8, 381:14 differently [6] 33:25, 52:10, 52:13, 52:14, 120:2, 341:14

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 401 of 425 PageID #: 4568

difficult [7] - 23:4, 109:8, 164:17, 181:14, 240:20, 249:6, 251:13
digital [1] - 378:2 digs [1] - 82:20 diminished [1] 105:10 dining [1] - 299:3 direct [10] - 92:7, 92:23, 93:22, 94:10, 97:23, 98:4, 98:9, 98:16, 357:11, 378:19 directed [3] - 345:7, 345:9, 386:4 directing [3] - 91:5, 96:6, 378:15 direction [1] - 264:9 directions [1] 198:20 directly [10] - 78:12, 107:21, 133:9, 210:21, 213:23, 265:7, 275:12, 283:7, 335:11, 335:17 directors [1] 245:10 disagree [5] - 32:10, 32:16, 34:8, 215:20, 217:11 disarm [1] - 205:12 disaster [1] - 56:24 disbelief [1] - 44:25 disclose [5] 111:24, 139:22, 139:25, 140:5, 141:25 disclosed [6] - 9:17, 62:25, 107:8, 111:22, 176:2, 254:5 disclosing [1] 228:2 disco [7] - 329:16, 331:11, 331:13, 333:5, 333:11, 333:12 discomfort [11] 140:6, 142:6, 173:16, 173:22, 176:3, 176:6, 176:23, 177:2, 177:11, 177:14, 177:16 discovery [1] - 9:17 discriminated [4] 57:21, 58:15, 58:20, 58:21 discrimination [1] 335:5 discuss [23] - 9:24, 24:8, 24:9, 35:10, 35:18, 57:11, 67:8, 93:16, 93:18, 93:20,

175:10, 214:23, 222:21, 226:11, 229:20, 257:12, 261:5, 261:8, 263:24, 264:2, 264:4, 268:10, 268:11
discussed [40] 6:18, 23:25, 34:18, 35:15, 35:22, 35:23, 36:8, 36:10, 41:21, 45:15, 46:16, 49:11, 60:12, 62:21, 64:5, 64:6, 67:5, 77:17, 78:12, 102:10, 123:8, 133:2, 133:23, 133:25, 143:8, 176:16, 214:20, 214:25, 215:25, 227:5, 236:8, 247:16, 253:23, 257:23, 260:18, 264:5, 338:21, 339:4, 363:24
discussing [6] 16:20, 32:21, 45:6, 93:12, 93:15, 257:22
discussion [14] 34:24, 43:8, 45:9, 45:19, 69:2, 85:8, 176:7, 261:15, 261:16, 261:19, 262:3, 281:12, 362:7, 387:5
disembark [1] 163:13
dismissed [6] - 83:6, 291:21, 291:22, 291:24, 292:3, 295:20
Disney [1] - 186:7 Disney's [1] - 186:3 dispute [1] - 314:3 disputes [1] - 15:15 disregard [10] 34:12, 39:9, 46:3, 46:6, 59:21, 119:15, 138:16, 268:19, 268:24, 285:2 dissatisfied [1] 217:9 distance [2] 293:24, 294:2 distinguish [3] 79:22, 150:13, 303:23 distinguishing [1] 150:13 distracted [1] - 350:9 distress [1] - 9:20 DISTRICT [2] - 1:2, 1:2 dive [2] - 288:21, 304:4

dives [2] - 31:24, 150:2
divorce [1] - 193:21 docked [1] - 217:19 doctor [9] - 20:24, 76:12, 77:5, 245:9, 245:14, 245:15, 245:16, 245:17, 245:20 doctor's [1] - 76:19 doctor/patient [1] 11:16 doctors [1] - 245:22 document [15] 26:25, 27:6, 27:14, 27:19, 28:21, 113:16, 197:19, 334:9, 335:9, 337:21, 340:16, 374:14, 389:9, 389:11, 389:14 documentation [2] 128:17, 200:10 documented [2] 199:17, 219:22 documents [5] 25:12, 26:7, 26:10, 26:21, 28:24 dog [1] - 105:25 don [2] - 27:22, 66:18 Don [24] - 19:8, 25:23, 48:10, 49:7, 50:13, 51:5, 51:6, 51:11, 51:22, 83:7, 260:23, 269:5, 270:24, 270:25, 271:21, 273:5, 277:18, 296:3, 362:12, 362:13, 362:14, 366:16, 367:18, 371:7 DONALD [4] - 1:4, 1:15, 388:8, 388:16 Donald [2] - 13:13, 389:5 donald [1] - 4:11 done [27] - 21:22, 30:25, 33:2, 77:10, 99:3, 124:4, 151:21, 154:2, 154:3, 165:18, 195:5, 201:5, 230:23, 240:11, 249:5, 252:2, 252:20, 301:21, 308:2, 308:3, 308:7, 311:18, 319:25, 320:21, 359:23, 372:22, 373:8 DonZarda.com [1] 381:2 door [7] - 36:3,

43:23, 54:9, 175:22, 175:23, 231:10, 346:5
doors [1] - 347:3 doubt [16] - 79:24, 104:7, 135:19, 135:21, 135:23, 170:14, 170:16, 170:19, 185:9, 265:17, 266:7, 269:15, 273:8, 275:9, 311:10, 311:13 doubting [2] 265:20, 266:10 Doug [3] - 134:4, 134:12, 214:14 down [49] - 11:9, 23:5, 46:15, 55:22, 61:4, 79:15, 112:4, 129:25, 149:4, 149:8, 149:10, 163:7, 171:11, 174:8, 174:10, 174:11, 175:18, 175:22, 187:4, 188:12, 196:5, 196:9, 199:24, 208:9, 208:10, 214:20, 227:21, 228:21, 228:23, 229:2, 239:11, 243:22, 246:17, 248:25, 249:5, 259:23, 281:21, 290:23, 296:8, 300:4, 303:14, 305:24, 318:10, 320:16, 320:19, 323:17, 376:24, 384:21, 386:6 download [1] - 304:2 dramatically [2] 281:4, 281:14 drank [1] - 98:23 drastically [1] 226:22 draw [2] - 289:12, 369:14 drawing [1] - 348:10 dressed [1] - 371:23 drew [1] - 123:11 drink [10] - 98:19, 98:21, 99:7, 99:8, 99:22, 235:3, 326:3, 326:19, 332:4, 373:10 drinker [1] - 100:8 drinking [1] - 333:21 drinks [3] - 99:8, 99:9, 325:14 drive [4] - 133:6, 280:15, 292:10, 294:6 driven [1] - 159:18 driver [1] - 210:11

South Shore Court Reporting (631) 235-6218

9
driving [2] - 280:12, 280:23
drogue [7] - 304:16, 305:7, 305:11, 305:13, 305:19, 305:23, 305:24
drop [66] - 35:6, 35:20, 38:14, 40:21, 49:18, 49:24, 55:21, 57:7, 62:22, 70:22, 70:24, 71:17, 99:12, 101:5, 132:5, 132:7, 132:8, 133:11, 134:4, 143:2, 146:11, 149:24, 150:8, 156:13, 195:15, 195:16, 202:17, 212:5, 213:13, 213:19, 224:18, 286:10, 298:15, 320:24, 320:25, 321:2, 324:13, 324:21, 325:11, 325:16, 326:4, 326:12, 326:17, 327:20, 327:24, 328:2, 328:6, 328:14, 329:22, 331:8, 331:17, 333:4, 340:2, 340:19, 341:6, 347:13, 347:19, 348:13, 348:14, 348:18, 350:25, 351:6, 351:10, 352:5, 372:19, 373:9
Dropzone.com [1] 327:21
drove [5] - 74:8, 146:5, 214:19, 278:4, 280:17
drugs [8] - 96:19, 96:22, 97:3, 97:4, 97:6, 97:9, 97:12
drunk [11] - 99:20, 99:21, 325:22, 325:25, 331:22, 331:24, 331:25, 332:2, 332:5, 332:7, 332:18
drunkenness [1] 332:3
duly [2] - 4:3, 390:6 Duncan [21] - 60:6, 60:7, 60:14, 65:6, 65:7, 65:15, 65:21, 66:16, 70:11, 269:14, 269:15, 269:20, 274:9, 290:16, 290:17, 323:4, 323:7, 323:8, 323:15, 328:17

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 402 of 425 PageID #: 4569

during [43] - 30:3, 30:8, 45:16, 47:6, 65:21, 88:7, 110:9, 113:12, 115:13, 116:7, 117:11, 127:3, 128:9, 136:7, 149:3, 173:20, 174:12, 184:10, 185:16, 189:4, 190:17, 191:4, 195:11, 229:16, 235:23, 236:23, 243:2, 249:2, 272:11, 288:3, 293:5, 300:17, 308:13, 323:17, 323:18, 323:19, 323:21, 324:10, 329:16, 330:10, 333:6, 361:6, 385:3
dysfunctional [1] 209:23
E
e-mail [10] - 62:5, 133:18, 168:23, 211:12, 212:25, 214:14, 238:11, 242:25, 344:24, 345:2
e-mailed [1] - 153:15 e-mails [5] - 134:3, 224:2, 375:6, 375:8, 378:4 ear [9] - 224:10, 224:17, 230:25, 231:21, 231:22, 231:23, 232:3, 232:5, 232:7 early [8] - 53:22, 144:21, 151:25, 163:5, 164:13, 285:15, 300:16, 313:23 earn [2] - 318:4, 319:5 earnings [1] - 315:18 earshot [4] - 223:4, 257:7, 346:21, 346:23 easier [3] - 110:12, 150:17, 377:12 easily [1] - 296:7 East [1] - 55:22 EASTERN [1] - 1:2 easy [8] - 90:6, 90:9, 188:7, 230:18, 270:24, 315:17, 321:8, 372:5 eat [3] - 293:16, 299:5, 323:16 ecstasy [2] - 97:17,

98:6 edit [1] - 34:4 EEOC [1] - 336:25 effect [9] - 3:17,
20:9, 57:15, 60:18, 80:23, 111:15, 156:22, 159:18, 361:12
effectively [1] 104:19
effects [6] - 19:20, 19:25, 20:6, 20:13, 20:19, 90:19
effort [3] - 140:6, 173:15, 176:3
eight [4] - 27:18, 143:11, 154:14, 306:23
eighteen [1] - 301:22 either [17] - 31:15, 66:10, 92:12, 127:15, 175:9, 202:11, 219:25, 220:2, 222:13, 225:15, 280:10, 286:19, 290:18, 291:17, 359:11, 373:9, 390:12 electrical [2] 324:23, 325:2 electronic [1] - 260:2 electronically [2] 303:18, 303:20 eleven [7] - 27:19, 154:14, 154:21, 154:22, 160:18, 164:17, 182:25 eleven-week [3] 154:22, 160:18, 182:25 Embry [4] - 152:6, 152:7, 152:16, 152:23 Embry-Riddle [4] 152:6, 152:7, 152:16, 152:23 emotional [3] - 9:9, 9:20, 362:11 emotionally [2] 106:7, 106:10 empathetic [1] 107:12 employed [7] 128:15, 129:8, 273:17, 273:25, 274:5, 335:6, 337:8 employee [8] 79:17, 100:11, 100:14, 101:6, 220:18, 221:18, 226:7, 269:23 employees [10] -

57:6, 81:22, 218:6, 226:6, 250:14, 264:5, 271:20, 286:15, 367:15, 367:17
employment [24] 34:20, 56:25, 68:3, 80:4, 128:10, 132:8, 132:21, 132:24, 132:25, 133:3, 133:21, 211:25, 212:6, 222:9, 222:11, 238:9, 269:25, 337:2, 337:18, 338:10, 338:11, 338:18, 338:19, 340:6
empowered [1] 124:18
encompassed [1] 96:22
encompasses [1] 175:23
encompassing [1] 222:4
encourage [1] 368:16
encouraged [3] 65:2, 325:20, 368:20
end [24] - 43:7, 57:2, 61:4, 72:22, 72:24, 81:3, 81:9, 143:22, 151:25, 161:11, 184:4, 184:16, 188:2, 194:15, 207:10, 214:10, 214:11, 252:4, 286:19, 313:18, 313:23, 328:18, 366:22, 373:24
endeavor [1] 167:23
ended [9] - 10:18, 11:15, 171:10, 179:13, 180:16, 184:19, 319:12, 326:14, 337:3
ends [1] - 61:6 enforce [1] - 308:12 enforced [2] 288:17, 308:16 engage [1] - 236:11 engagement [1] 286:5 enjoy [13] - 71:11, 71:15, 71:18, 71:20, 73:8, 148:9, 148:10, 164:5, 164:6, 164:8, 209:4, 299:2, 365:25 enjoyable [1] - 141:2 enjoyed [7] - 73:5, 73:7, 107:18, 120:4,

134:18, 162:10, 207:21
enlighten [1] 270:21
enroll [1] - 195:8 enrolled [1] - 153:14 enrollment [1] 153:11 ensure [2] - 9:12, 17:22 entangled [3] 305:15, 305:16, 305:17 entertain [1] - 331:17 entire [5] - 41:15, 74:17, 109:5, 109:6, 130:10 entirely [2] - 14:24, 137:21 entitled [5] - 42:23, 68:17, 124:6, 133:14, 379:22 entity [1] - 260:2 environment [6] 127:10, 209:17, 209:18, 209:22, 209:23, 266:2 environments [1] 209:20 equipment [6] 69:12, 69:15, 69:22, 69:23, 69:24, 69:25 Erler [1] - 214:3 errands [5] - 293:6, 293:13, 293:15, 319:13, 324:7 ERRATA [1] - 391:2 error [2] - 240:11, 240:17 escaped [2] - 309:2, 309:4 especially [2] 48:22, 249:2 ESQ [2] - 2:4, 2:10 essentially [2] 14:25, 31:20 established [2] 76:25, 200:14 establishments [1] 299:4 estimate [1] - 130:8 Europe [1] - 180:14 evaluations [1] 305:4 evaluator [1] - 32:4 evening [2] - 74:7, 74:15 evenings [1] 296:13 event [5] - 144:22,

South Shore Court Reporting (631) 235-6218

10
144:23, 247:3, 277:6, 329:20
events [6] - 7:15, 21:22, 327:22, 332:17, 350:22, 365:22
eventually [1] 73:21
evidence [1] 274:18
ex [13] - 189:8, 189:9, 189:16, 191:18, 191:20, 192:24, 193:12, 194:6, 194:9, 205:12, 244:18, 245:13, 246:18
ex-husband [9] 189:8, 189:16, 191:18, 191:20, 194:6, 194:9, 205:12, 244:18, 245:13
ex-husband's [1] 189:9
ex-wife [2] - 192:24, 193:12
exact [1] - 211:11 exactly [29] - 35:23, 44:7, 49:8, 49:10, 63:12, 88:21, 110:25, 111:19, 111:20, 116:2, 116:6, 127:18, 128:7, 131:16, 131:19, 132:13, 136:17, 144:7, 149:11, 157:7, 163:2, 177:6, 307:23, 332:14, 339:6, 352:12, 359:10, 371:5, 373:14 exaggerate [1] 200:20 exaggerated [1] 169:24 EXAMINATION [3] 1:15, 4:7, 389:4 examined [1] - 4:5 examiner [1] - 32:4 example [2] 248:10, 258:16 examples [2] 47:16, 97:16 except [3] - 3:10, 309:19, 362:15 excess [2] - 98:21, 98:23 exchange [1] 133:19 exchanging [2] 167:6, 356:7

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 403 of 425 PageID #: 4570

excluded [2] - 334:2, 334:3
exclusively [1] - 57:7 excuse [4] - 61:5, 157:18, 359:22, 372:16 executed [1] 179:18 exercise [1] - 87:16 Exercise [1] - 245:18 exercises [1] - 89:8 Exhibit [10] - 27:4, 27:9, 27:13, 27:17, 334:5, 374:17, 374:19, 382:21, 382:22, 386:9 exhibit [2] - 382:9, 384:22 exhibits [1] - 26:22 EXHIBITS [1] - 389:7 existence [1] 250:24 exit [2] - 187:7 expect [1] - 385:24 expected [8] - 70:24, 105:13, 291:15, 291:19, 295:4, 295:7, 295:9, 295:13 expensive [1] 249:4 experience [11] 69:9, 82:3, 82:7, 140:25, 141:16, 163:23, 164:2, 164:5, 174:2, 277:22 experienced [4] 31:15, 38:16, 64:21, 265:24 experiences [1] 164:6 experiencing [2] 104:15, 104:18 expert [2] - 255:20, 314:10 explain [6] - 9:4, 15:18, 59:15, 88:13, 118:10, 118:12 explained [2] - 6:15, 15:5 explaining [3] - 9:23, 26:6, 302:11 explore [1] - 9:10 express [1] - 354:24 EXPRESS [1] - 1:8 Express [5] - 5:2, 5:10, 12:19, 315:19, 386:11 expressed [1] 53:23 extended [1] -

130:13 extension [1] - 36:2 extent [5] - 6:24,
124:17, 137:17, 141:9, 270:8
extra [9] - 72:22, 81:2, 81:10, 82:5, 82:8, 82:16, 83:21, 86:12, 198:2
extreme [1] - 308:14
F
F-A-L-C-O-N-E [1] 114:13
FAA [2] - 141:10, 317:3
fabricate [1] - 170:21 fabulous [1] - 184:7 face [11] - 133:10, 133:15, 180:21, 212:11, 212:20, 231:14, 231:17 face-to-face [4] 133:10, 133:15, 212:11, 212:20 FaceBook [33] 238:15, 258:4, 258:20, 259:2, 259:6, 259:8, 259:20, 259:22, 260:4, 261:24, 263:3, 294:20, 294:22, 372:3, 374:16, 375:3, 375:4, 375:7, 375:8, 376:15, 377:17, 378:4, 381:3, 381:6, 382:17, 382:19, 383:9, 383:12, 384:8, 385:12, 385:13, 389:15 facials [1] - 245:4 facilities [1] - 324:20 facility [1] - 146:13 fact [24] - 14:24, 31:22, 33:2, 33:7, 42:21, 47:14, 50:2, 74:15, 83:12, 102:24, 106:13, 111:21, 114:19, 139:8, 139:12, 149:3, 199:4, 227:8, 232:18, 235:14, 275:21, 276:10, 338:6, 363:20 factor [1] - 280:24 factors [1] - 281:18 facts [7] - 30:16, 30:17, 46:19, 225:5, 225:7, 269:11, 315:14

factually [3] - 267:9, 267:18, 268:15
fag [4] - 256:19, 256:22, 257:2, 257:9
fair [4] - 51:12, 226:25, 252:9, 298:5
Falcone [4] - 114:12, 114:13, 115:4, 131:5
fall [6] - 33:18, 54:23, 264:21, 304:7, 304:8, 306:5
falling [2] - 306:4, 332:5
false [3] - 6:9, 6:11, 155:16
falsely [3] - 155:18, 155:21, 155:23
familiar [21] - 19:9, 78:9, 96:18, 136:12, 136:19, 137:7, 138:22, 139:10, 186:5, 189:20, 246:4, 355:7, 356:22, 357:7, 357:15, 357:20, 358:9, 358:11, 358:19, 366:8, 366:13
familiarity [2] 19:11, 338:13
familiarize [2] - 7:21, 16:3
family [5] - 105:23, 106:13, 189:11, 236:21, 340:20
fan [1] - 107:13 fancy [1] - 192:2 far [19] - 14:12, 22:2, 22:3, 32:19, 54:22, 61:8, 70:23, 78:12, 80:18, 143:17, 185:17, 186:9, 213:8, 224:12, 254:24, 288:7, 319:17, 322:10, 322:12 FARs [1] - 288:16 fast [2] - 110:10, 112:6 faster [1] - 318:9 fatalities [5] 184:12, 185:15, 186:15, 187:2, 187:10 fatality [1] - 187:5 father [1] - 182:2 fault [1] - 192:12 favor [1] - 379:15 favorite [1] - 366:20 February [8] 160:23, 161:12, 164:10, 165:3, 165:22, 177:17, 184:3, 313:24

Federal [8] - 7:20, 8:9, 13:22, 16:3, 124:3, 124:9, 124:15, 125:5
fee [1] - 146:22 feelings [3] - 240:2, 240:4, 240:7 feet [11] - 195:24, 288:11, 288:12, 288:13, 304:11, 320:9, 320:10, 347:2, 349:21, 352:4 fell [1] - 352:11 fellow [1] - 145:12 felt [20] - 51:18, 85:3, 88:21, 101:16, 102:18, 102:21, 104:13, 106:24, 133:13, 134:13, 136:16, 136:19, 173:22, 204:2, 211:9, 213:8, 228:22, 228:25, 290:13, 325:7 female [2] - 134:17, 172:17 feminine [2] 120:14, 120:16 ferry [1] - 296:8 few [17] - 24:22, 41:16, 44:12, 50:2, 60:2, 61:7, 66:6, 125:10, 147:11, 153:15, 169:8, 190:8, 194:12, 207:17, 300:5, 320:4, 355:21 fifteen [5] - 175:24, 229:14, 296:9, 318:21, 319:4 Fifth [2] - 92:21, 95:10 figure [2] - 78:17, 372:18 figured [1] - 63:7 file [6] - 129:4, 250:17, 250:20, 250:24, 251:3, 251:6 filed [7] - 212:21, 218:15, 218:17, 235:10, 251:8, 251:19, 384:10 filing [1] - 3:6 fill [1] - 99:5 final [2] - 77:2, 321:4 finally [4] - 201:8, 212:10, 314:23, 367:24 finals [1] - 164:18 financially [1] 252:7 fine [15] - 25:25,

South Shore Court Reporting (631) 235-6218

11
26:2, 58:10, 68:21, 69:23, 75:16, 77:21, 94:24, 239:22, 276:17, 299:3, 307:2, 339:8, 385:10
finish [12] - 7:24, 9:23, 75:14, 123:3, 123:22, 140:23, 157:25, 158:21, 161:3, 167:20, 229:22, 232:12
finished [6] - 122:22, 123:2, 157:16, 165:11, 184:3, 282:8
finishing [1] - 123:20 Fire [26] - 63:8, 63:16, 63:20, 64:3, 64:5, 64:7, 64:10, 260:8, 260:14, 260:15, 261:17, 262:4, 295:16, 295:19, 295:24, 296:4, 296:12, 296:22, 296:24, 297:2, 297:10, 298:13, 333:6, 365:20, 365:23 fire [4] - 217:22, 223:6, 233:17, 279:24 fired [21] - 109:13, 132:9, 200:9, 215:8, 215:16, 215:17, 215:22, 216:3, 216:5, 225:9, 225:21, 243:9, 243:10, 243:11, 252:21, 253:8, 272:12, 278:3, 279:21, 284:4, 300:23 firing [3] - 101:23, 243:14, 284:7 first [34] - 4:3, 30:19, 41:15, 55:16, 56:2, 74:3, 74:4, 78:6, 82:11, 82:24, 83:18, 84:24, 85:19, 152:24, 156:6, 160:24, 176:6, 176:15, 177:11, 177:14, 187:3, 200:24, 202:15, 207:25, 210:20, 216:2, 216:5, 247:22, 255:2, 285:20, 330:17, 346:6, 354:9, 374:7 fit [1] - 85:13 Fitness [3] - 244:22, 244:23, 246:9 five [19] - 27:18, 32:18, 35:8, 46:11, 87:25, 88:9, 116:7,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 404 of 425 PageID #: 4571

147:11, 147:16, 194:17, 194:23, 195:12, 276:8, 298:8, 298:9, 305:8, 306:14, 306:15, 306:23
fix [1] - 109:20 flash [1] - 206:6 flat [2] - 169:23, 283:6 flat-out [1] - 169:23 flawed [1] - 348:11 flew [1] - 146:4 flip [1] - 307:14 flipping [1] - 374:25 flips [4] - 57:14, 307:12, 307:24, 309:7 floating [1] - 193:4 Florida [2] - 152:12, 164:12 fluctuate [1] - 86:5 flustered [2] - 42:12, 44:3 fly [7] - 146:5, 195:25, 288:25, 291:6, 291:7, 321:3, 321:17 flying [4] - 143:3, 196:8, 196:9, 375:18 focus [2] - 198:8, 220:12 focused [1] - 109:15 focussed [1] - 249:3 folder [2] - 26:8, 26:19 follow [4] - 119:5, 317:5, 335:20, 335:23 follower [1] - 186:7 following [9] - 12:7, 17:7, 22:6, 76:21, 114:24, 160:18, 317:2, 391:3, 391:4 follows [1] - 4:6 food [1] - 182:10 foot [5] - 347:18, 348:3, 348:8, 348:21, 351:2 footage [2] - 34:2, 43:6 force [2] - 3:16, 370:17 forced [3] - 40:5, 289:23, 290:8 forever [1] - 88:22 forget [2] - 73:16, 350:10 forgetting [1] - 230:7 forgot [2] - 78:21, 304:5 forgotten [1] - 78:24 form [17] - 3:10,

21:17, 30:12, 32:12, 34:11, 76:3, 79:12, 86:11, 158:8, 168:21, 174:4, 233:19, 261:11, 310:9, 311:9, 378:17, 380:12
forms [1] - 99:6 Fort [1] - 164:12 forth [8] - 189:23, 190:10, 208:4, 214:15, 258:6, 365:25, 370:7, 390:6 Fortunately [1] 189:3 forty [5] - 109:7, 126:22, 127:3, 156:12, 255:13 forty-one [2] - 109:7, 126:22 forty-one-year-old [1] - 127:3 forum [1] - 259:10 forward [4] - 66:23, 76:6, 230:22, 247:25 forwarded [1] 211:13 four [20] - 12:22, 26:25, 27:14, 27:18, 89:2, 141:22, 147:11, 147:16, 154:9, 156:5, 194:16, 194:22, 195:12, 224:12, 276:8, 297:21, 298:8, 298:9, 300:14, 300:16 Four [1] - 389:9 four-page [2] 26:25, 27:14 Four-page [1] 389:9 fourth [1] - 143:21 fractured [1] - 74:15 frame [1] - 164:21 freaking [1] - 188:10 free [11] - 33:18, 138:16, 171:10, 264:21, 268:24, 304:7, 304:8, 372:16, 373:5, 374:11, 376:23 frequently [5] 40:21, 47:15, 47:24, 87:20, 271:25 fresh [1] - 181:15 Friday [4] - 36:24, 43:3, 361:21, 366:22 friend [10] - 29:10, 51:16, 51:18, 60:6, 113:23, 115:3, 256:13, 256:14, 256:17, 366:16 friendly [3] - 29:20,

54:22, 351:20 friends [16] - 21:20,
113:13, 113:20, 145:23, 145:24, 149:19, 162:15, 210:7, 210:8, 210:9, 210:13, 238:12, 238:16, 239:15, 294:22, 333:8
friendship [1] 256:15
fringe [1] - 210:5 front [19] - 15:23, 26:8, 28:20, 40:3, 50:7, 50:8, 52:24, 144:7, 166:2, 222:15, 222:21, 225:14, 228:18, 243:13, 249:10, 314:11, 334:4, 372:13 froze [1] - 182:12 frustrated [1] - 60:20 frustration [1] 134:19 fuck [4] - 381:9, 381:15, 381:16 full [27] - 4:9, 33:11, 40:8, 42:9, 60:10, 65:19, 72:17, 78:19, 97:2, 105:16, 105:17, 127:11, 165:5, 165:6, 165:19, 183:2, 217:20, 252:13, 252:15, 273:22, 273:23, 293:19, 295:18, 314:14, 319:8, 324:9, 328:17 full-time [13] - 60:10, 65:19, 165:5, 165:6, 165:19, 183:2, 252:13, 252:15, 273:23, 293:19, 314:14, 324:9, 328:17 full-timer [1] 273:22 full-timers [1] 127:11 fully [2] - 123:24, 248:8 fun [33] - 21:21, 48:20, 61:11, 61:24, 64:19, 105:7, 105:9, 143:9, 144:24, 148:24, 150:2, 150:3, 150:10, 150:12, 150:16, 150:19, 151:2, 151:7, 161:20, 162:4, 162:5, 162:7, 162:9, 180:2, 180:3, 206:17, 206:20,

270:7, 303:21, 303:23, 304:10, 325:19
functions [2] 174:17, 344:22
Fund [2] - 243:25, 282:6
funny [5] - 82:18, 117:16, 117:18, 117:20, 122:14
FURTHER [2] - 3:9, 3:13
furthermore [1] 15:3
Furthermore [1] 15:17
future [1] - 385:25
G
gag [1] - 41:17 gain [1] - 87:11 game [2] - 63:23, 381:6 games [1] - 186:10 gap [2] - 108:8, 371:18 Gardiner [1] - 149:23 gas [1] - 217:22 Gay [9] - 49:7, 50:13, 51:5, 51:6, 51:11, 51:21, 269:5, 270:24, 270:25 gay [96] - 38:10, 41:11, 43:18, 46:22, 48:10, 52:19, 52:22, 53:8, 53:9, 53:11, 54:9, 55:4, 63:6, 63:10, 115:25, 116:10, 117:25, 118:7, 118:24, 119:3, 119:18, 121:7, 121:10, 121:12, 121:23, 121:24, 134:14, 138:23, 139:4, 139:14, 172:13, 189:20, 189:24, 202:19, 202:20, 203:6, 204:24, 205:11, 205:15, 205:19, 205:24, 205:25, 206:11, 206:14, 215:3, 215:8, 215:17, 228:7, 228:13, 236:8, 236:9, 236:12, 237:20, 242:14, 242:17, 243:7, 244:10, 264:13, 269:4, 270:6, 270:7,

South Shore Court Reporting (631) 235-6218

12
270:13, 270:18, 270:22, 271:18, 278:4, 278:12, 278:16, 278:21, 278:25, 279:5, 279:11, 279:25, 280:11, 281:5, 281:16, 281:24, 332:20, 333:7, 344:12, 346:3, 356:13, 357:19, 357:22, 357:24, 359:6, 359:14, 359:22, 365:21, 365:24, 366:4, 369:23, 370:6
gayness [1] - 117:14 gear [4] - 32:5, 101:8, 126:6, 373:6 gearing [1] - 126:9 gender [3] - 116:16, 116:17, 335:4 general [9] - 11:15, 57:4, 64:8, 66:15, 71:25, 125:25, 222:3, 258:16, 321:24 generally [8] - 8:13, 10:11, 63:21, 206:18, 206:21, 290:18, 315:10, 317:19 generated [1] 168:23 gentleman [1] 49:22 gentlemanly [1] 213:8 genuine [1] - 170:18 geographically [1] 110:22 German [1] - 353:22 getting-laid [2] 327:25, 328:21 gift [1] - 316:3 giggling [1] - 349:10 girl [13] - 37:9, 37:21, 43:15, 43:16, 43:20, 43:25, 171:21, 203:11, 243:16, 264:16, 361:20, 361:23, 362:2 girl's [1] - 264:20 girlfriend [22] 37:20, 82:25, 83:13, 136:12, 136:20, 137:8, 138:23, 139:10, 202:10, 203:17, 205:9, 205:15, 205:24, 228:19, 355:7, 357:7, 357:16, 357:20,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 405 of 425 PageID #: 4572

358:10, 359:8, 359:15, 360:8
given [11] - 17:13, 128:25, 170:7, 170:13, 199:18, 283:7, 285:25, 291:17, 355:19, 388:14, 390:9
glad [1] - 377:21 glory [1] - 375:13 goal [3] - 141:4, 141:7, 141:19 goals [1] - 141:6 God [1] - 346:19 Goki [2] - 273:13, 273:16 golden [1] - 202:16 goodbye [1] - 16:25 Goodbye [1] - 17:2 goodness [1] - 77:14 gorgeous [1] - 374:5 gosh [1] - 66:5 grab [1] - 334:24 graced [1] - 128:11 grade [3] - 31:20, 31:23, 159:23 graded [1] - 33:8 grades [4] - 160:5, 166:8, 183:16, 183:19 grading [1] - 31:4 grass [2] - 151:19, 195:24 greased [1] - 370:18 great [16] - 7:4, 70:7, 72:25, 149:17, 178:17, 181:10, 184:17, 194:24, 210:15, 309:10, 337:13, 348:19, 367:15, 367:18, 371:7 green [1] - 326:18 greg [1] - 237:6 Gregory [2] - 12:17, 13:11 GREGORY [1] - 2:4 grew [1] - 247:24 grief [3] - 104:15, 104:17, 187:21 ground [3] - 126:9, 126:10, 140:17 grounds [10] - 7:11, 92:9, 93:24, 94:6, 94:16, 95:2, 95:10, 95:24, 96:12, 386:16 group [8] - 13:14, 119:17, 145:17, 145:18, 148:8, 177:17, 351:13, 369:25 Grove [2] - 260:24,

366:14 grunt [1] - 23:3 guess [12] - 130:25,
160:4, 179:10, 196:11, 250:4, 272:17, 284:8, 284:12, 325:8, 330:14, 333:17, 383:18
guilt [2] - 180:23, 181:2
guilty [1] - 180:21 guy [14] - 43:15, 43:18, 82:11, 127:17, 179:5, 179:8, 202:11, 202:12, 224:15, 323:7, 323:9, 360:11, 368:10, 375:10 guys [21] - 14:11, 14:16, 16:13, 28:14, 118:18, 118:21, 218:7, 271:17, 323:11, 341:16, 341:19, 357:22, 364:15, 367:20, 368:2, 368:21, 369:5, 369:9, 370:19, 385:8, 385:17 gym [4] - 87:18, 88:15, 89:19, 89:22
H
habit [2] - 108:18, 108:20
had.. [1] - 342:12 hair [3] - 120:10, 231:18, 245:3 half [5] - 35:17, 301:7, 303:12, 316:24 half-and-half [1] 303:12 halfway [1] - 284:18 halter [1] - 264:18 hamburger [1] 325:13 Hamptons [2] 366:9, 366:20 hand [4] - 46:7, 255:20, 384:20, 390:17 handbook [1] 314:15 handing [1] - 26:14 handle [4] - 32:21, 33:3, 269:6, 332:25 handled [2] - 223:21, 223:22 handling [1] - 315:12

hands [5] - 174:13, 174:15, 174:24, 175:6, 186:23
hang [3] - 270:11, 320:13, 331:17
hanging [8] - 99:12, 169:17, 201:11, 239:15, 294:14, 319:12, 351:10, 353:4
hangout [5] - 333:4, 347:23, 348:2, 348:12, 348:17
happy [6] - 7:19, 160:5, 160:7, 201:9, 377:14, 377:16
hard [6] - 148:25, 159:21, 169:6, 183:11, 250:14, 319:19
harness [4] - 231:23, 233:7, 233:8, 233:10
hat [23] - 120:5, 120:7, 120:15, 120:20, 121:5, 121:14, 122:17, 122:24, 123:5, 123:8, 125:15, 125:21, 126:2, 126:11, 126:14, 126:24, 127:2, 127:7, 127:13, 127:17, 127:19, 128:4
hated [1] - 242:24 hats [1] - 128:20 hazard [1] - 179:9 head [27] - 19:16, 50:18, 51:3, 51:9, 51:15, 61:9, 66:5, 66:19, 123:11, 125:25, 126:12, 147:20, 203:8, 229:17, 230:14, 230:16, 231:13, 231:16, 244:3, 270:24, 279:19, 280:2, 288:16, 302:17, 302:22, 359:19, 369:17 headed [1] - 43:23 healing [1] - 107:5 health [1] - 147:22 healthy [1] - 77:21 hear [13] - 29:23, 30:20, 97:13, 168:18, 169:12, 169:13, 169:14, 206:24, 230:25, 231:20, 243:4, 254:25, 365:5 heard [24] - 19:3, 47:7, 49:12, 49:13, 96:20, 156:7, 168:6,

169:25, 192:25, 193:3, 266:17, 308:24, 345:24, 346:4, 346:8, 346:15, 346:17, 346:18, 346:19, 346:20, 347:5, 367:14, 367:22
hearing [4] - 230:17, 266:21, 314:24, 346:25
hears [1] - 205:13 hearsay [1] - 192:25 heart [2] - 54:25, 103:16 heavily [1] - 185:19 heavy [3] - 182:24, 198:2, 324:10 hectic [1] - 148:23 heeded [2] - 90:12, 113:18 held [4] - 1:19, 100:24, 281:13, 387:6 Helfand [2] - 114:4, 115:3 HELFAND [1] - 114:5 help [3] - 133:20, 363:16, 363:22 helped [3] - 107:6, 107:7, 200:22 helpful [1] - 194:20 helpless [1] - 363:19 hence [1] - 368:17 Henrietta [1] 129:25 herd [1] - 290:23 HEREBY [1] - 3:4 hereby [3] - 3:7, 388:8, 390:4 herein [3] - 1:16, 3:6, 4:3 hereinbefore [1] 390:6 hereunto [1] 390:16 heterosexual [2] 55:2, 55:5 Hi [1] - 13:7 hi [2] - 13:9, 351:17 hidden [1] - 201:12 hide [1] - 64:14 high [4] - 76:8, 81:21, 88:5, 195:25 high-spirited [1] 76:8 higher [2] - 32:3, 318:18 highlight [1] - 48:9 highly [1] - 31:15 Highway [2] - 1:13, 2:8

South Shore Court Reporting (631) 235-6218

13
himself [6] - 92:10, 96:9, 242:7, 242:13, 290:15, 359:17
Hinckley [2] 132:14, 210:23
hindsight [3] - 204:5, 204:9, 204:15
hip [5] - 155:25, 172:25, 231:13, 254:5
hips [18] - 44:3, 172:18, 173:5, 173:9, 173:12, 173:21, 174:14, 174:16, 174:25, 175:6, 175:16, 175:17, 177:3, 253:13, 253:16, 253:19, 255:18, 274:25
hired [11] - 56:17, 56:20, 67:3, 68:5, 68:6, 78:10, 78:16, 241:20, 242:2, 244:11, 286:21
hiring [1] - 56:20 Hispanic [3] 353:23, 354:3, 354:5 history [1] - 225:5 hit [7] - 205:14, 306:18, 306:24, 320:2, 360:9, 385:3, 385:5 hit-and-miss [1] 320:2 hitting [7] - 44:22, 305:25, 355:3, 359:15, 384:14, 384:15, 384:19 hobbies [1] - 163:17 hobbling [4] - 348:8, 348:15, 349:20, 352:10 hobby [2] - 163:19, 163:24 hold [8] - 13:2, 31:17, 98:15, 117:13, 122:9, 149:21, 168:15, 378:9 holding [4] - 246:20, 246:22, 246:23, 246:25 holds [1] - 36:4 hole [1] - 322:15 holidays [2] - 86:23, 182:3 home [27] - 77:18, 129:11, 129:18, 130:6, 130:20, 132:3, 133:8, 133:9, 143:11, 143:13, 143:15, 143:16, 191:8,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 406 of 425 PageID #: 4573

206:23, 208:17, 224:24, 236:21, 293:8, 295:22, 319:14, 319:16, 322:6, 322:9, 322:11, 322:14, 324:5, 373:10
homes [1] - 293:19 homework [2] 99:16, 198:9 homo [6] - 238:17, 238:20, 238:23, 238:25, 239:4, 239:12 homophobia [1] 242:17 homophobic [3] 241:14, 241:16, 242:16 homosexual [3] 53:2, 239:2, 257:14 honest [1] - 237:24 Honor [2] - 14:8, 17:24 hook [1] - 332:17 hookup [1] - 175:21 hop [1] - 300:4 hope [4] - 18:4, 192:22, 234:4, 250:13 hormone [1] - 245:6 horrible [3] - 181:11, 373:22, 374:7 hose [1] - 324:24 hoses [1] - 325:2 hospital [1] - 74:8 hot [7] - 127:16, 188:10, 188:18, 188:23, 189:6, 205:6, 233:6 hottest [1] - 188:24 hour [5] - 99:22, 99:23, 143:2, 301:7, 316:24 hours [14] - 32:18, 46:12, 126:3, 143:3, 143:11, 182:24, 183:2, 276:18, 291:11, 291:14, 300:18, 328:15 house [4] - 151:17, 182:9, 323:16, 323:21 housing [1] - 146:16 humiliated [1] 215:11 hurry [1] - 264:19 hurt [16] - 187:17, 240:2, 240:3, 240:7, 252:22, 300:16, 300:22, 340:4, 340:18, 340:20, 345:14, 345:21, 345:22, 351:9,

351:10, 352:17 husband [10] -
189:8, 189:16, 189:23, 191:18, 191:20, 194:6, 194:9, 205:12, 244:18, 245:13
husband's [1] 189:9
husbands [1] - 190:5 hype [1] - 367:14 hypocritical [1] 223:9
I
iced [2] - 234:20, 234:24
idea [7] - 82:13, 166:17, 183:5, 228:7, 228:16, 370:17, 378:5
identification [3] 27:5, 27:10, 374:18
identified [1] - 27:16 identify [10] - 13:19, 97:11, 120:21, 122:16, 128:3, 270:13, 270:14, 346:16, 346:18, 372:5 if-then-us [1] - 357:9 ignorance [1] 240:12 illegal [10] - 96:19, 97:3, 97:6, 97:8, 97:10, 97:19, 220:3, 234:4, 289:20, 289:25 illegally [2] - 289:23, 290:8 Illinois [2] - 132:14, 210:24 illnesses [1] - 9:16 image [1] - 371:3 imagine [8] - 178:25, 224:14, 284:2, 284:14, 284:23, 284:25, 285:4, 352:2 immediate [1] 385:13 immediately [5] 192:20, 207:24, 218:10, 218:13, 277:14 impact [2] - 20:2, 306:7 imply [1] - 240:7 important [2] 44:19, 45:13 impossible [6] 109:22, 115:14,

121:3, 211:24, 272:4, 385:15
impression [1] 359:5
improper [2] - 7:17, 378:11
improvements [1] 259:13
IN [1] - 390:16 inaccurate [5] 45:25, 47:8, 47:11, 47:17, 268:15 inappropriate [15] 71:8, 71:10, 139:21, 157:8, 172:16, 201:18, 202:22, 216:6, 216:11, 216:15, 216:16, 243:15, 277:19, 281:23, 361:16 inappropriately [14] - 43:21, 44:2, 134:17, 155:24, 171:21, 173:6, 227:7, 227:24, 228:14, 238:23, 243:16, 274:25, 275:22, 275:25 INC [1] - 1:8 incident [5] - 200:13, 216:14, 221:4, 260:7, 347:11 include [6] - 88:6, 258:10, 338:17, 338:19, 352:20, 370:11 included [1] - 318:19 including [2] - 16:19, 69:20 income [6] - 250:17, 250:20, 251:3, 251:6, 311:14, 311:15 incorporated [1] 246:10 Incorporated [1] 246:11 incorrect [4] 213:11, 259:5, 267:9, 267:18 increases [1] - 86:9 incriminate [7] 92:10, 94:6, 94:16, 95:3, 95:25, 96:9, 96:13 incrimination [2] 94:2, 95:12 indemnification [1] 338:16 indemnify [1] - 340:2 Independence [1] 55:14

INDEX [1] - 389:2 Index [1] - 1:6 indicate [3] - 228:6, 307:3, 311:6 indicated [4] - 50:17, 227:16, 228:3, 248:15 indicates [1] - 122:5 indicating [11] 25:18, 51:9, 87:5, 87:9, 203:16, 231:14, 231:17, 231:25, 247:24, 303:13, 384:8 indicating) [6] 118:16, 206:5, 231:22, 328:9, 334:6, 343:22 indirect [1] - 335:14 indirectly [1] 335:13 indistinguishable [2] - 80:5, 80:8 individual [5] - 9:11, 32:7, 33:24, 70:25, 115:21 individuals [6] 71:12, 108:19, 108:24, 109:4, 115:13, 116:7 industry [6] - 150:5, 252:23, 277:23, 289:24, 326:13, 340:10 infer [1] - 353:3 inflated [2] - 174:9, 175:4 influx [1] - 264:18 information [22] 15:3, 20:9, 159:12, 159:22, 159:24, 168:15, 169:5, 198:5, 199:10, 222:15, 223:2, 225:14, 226:9, 226:10, 226:12, 242:20, 254:23, 268:2, 362:17, 362:21, 385:12 informed [1] - 383:6 infrastructure [1] 195:6 infrequently [1] 351:16 initial [3] - 76:19, 306:7, 307:20 injured [4] - 184:13, 348:12, 352:19, 352:20 injuries [5] - 69:18, 187:9, 187:12, 187:14, 187:17 injury [10] - 69:16,

South Shore Court Reporting (631) 235-6218

14
69:20, 75:7, 75:19, 88:12, 88:14, 90:19, 226:23, 298:11, 351:12
innocent [1] - 235:24 inquire [1] - 184:24 insecure [2] - 171:4, 359:16 insecurity [2] 171:4, 360:5 insist [1] - 158:13 insisted [1] - 15:17 inspection [1] - 14:9 instance [4] - 47:5, 47:25, 109:10, 109:21 instant [1] - 206:6 instead [1] - 223:24 instructed [1] - 96:5 instruction [1] - 91:2 instructions [3] 89:12, 230:22, 232:6 instructor [15] 32:23, 35:14, 44:16, 60:17, 102:17, 156:11, 156:12, 174:18, 208:3, 218:5, 269:22, 277:23, 305:9, 308:3, 340:10 instructors [11] 31:16, 48:20, 210:3, 220:20, 231:5, 286:17, 286:21, 309:6, 309:9, 340:3, 345:21 insult [1] - 142:14 insulted [3] - 15:22, 15:23, 15:24 insurance [2] - 99:6, 226:22 Insurance [2] 243:25, 282:6 intelligent [1] 378:24 intend [3] - 153:21, 314:17, 314:22 intended [4] 153:18, 339:21, 339:23, 340:5 intention [2] - 10:4, 239:20 interact [3] - 55:4, 370:6, 370:9 interaction [5] 50:16, 134:20, 216:7, 216:11, 239:9 interactions [6] 70:8, 70:14, 79:21, 79:22, 83:25, 353:8 intercede [1] - 207:6 interchangeably [1]

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 407 of 425 PageID #: 4574

- 189:25 interest [4] - 234:17,
266:12, 269:20, 289:14
interested [4] 257:25, 369:16, 380:18, 390:14
interfered [3] - 88:8, 89:15, 89:18
international [1] 153:7
interpreting [1] 340:15
Interrogatories [4] 27:8, 27:16, 334:13, 389:13
interrogatories [4] 25:14, 164:20, 182:19, 197:19
interrupt [4] - 7:25, 157:24, 158:16, 349:3
interrupted [1] 123:19
interrupting [1] 158:4
intimate [1] - 203:12 intriguing [1] - 243:3 introduce [1] - 26:22 introductions [1] 145:23 introductory [1] 13:14 invades [1] - 11:15 investigate [5] 220:16, 226:8, 277:10, 362:21, 363:8 investigating [5] 39:6, 39:12, 39:16, 220:19, 362:6 investigation [3] 220:22, 362:22, 363:11 Investments [1] 246:11 invite [1] - 323:15 invited [2] - 330:22, 330:24 invoke [1] - 239:20 involved [12] - 45:18, 54:16, 65:18, 155:11, 195:4, 198:23, 233:5, 236:2, 248:8, 255:15, 255:17, 258:7 involvements [2] 55:8, 55:10 involves [2] - 219:7, 329:20 iPhone [1] - 378:3 Ira [2] - 114:4, 115:3 irrational [2] -

225:18, 362:10 irrelevant [3] - 10:20,
42:16, 201:6 IS [3] - 3:4, 3:9, 3:13 Island [131] - 29:18,
31:22, 55:17, 55:18, 55:20, 55:25, 56:3, 56:8, 56:15, 56:18, 59:3, 60:4, 60:9, 61:11, 62:25, 63:9, 63:16, 63:20, 64:3, 64:6, 64:7, 64:10, 69:4, 69:9, 73:6, 75:12, 75:18, 76:23, 77:11, 77:16, 78:3, 78:8, 80:4, 81:22, 85:18, 85:20, 100:9, 100:15, 102:13, 103:19, 107:9, 115:5, 125:20, 128:10, 128:15, 129:8, 133:22, 134:2, 134:14, 202:3, 207:21, 208:20, 209:5, 210:14, 211:9, 212:8, 212:21, 213:18, 213:25, 214:2, 214:18, 214:21, 226:20, 239:25, 241:13, 260:8, 260:14, 260:15, 261:7, 261:17, 262:4, 262:24, 263:18, 263:25, 266:3, 266:13, 273:18, 274:2, 274:6, 274:11, 274:16, 274:21, 285:12, 286:24, 287:10, 288:18, 292:23, 294:9, 294:24, 295:5, 295:16, 295:19, 295:24, 296:5, 296:12, 296:22, 296:24, 297:2, 297:10, 298:13, 298:14, 298:20, 302:19, 312:14, 312:17, 313:4, 315:19, 316:13, 316:16, 317:17, 326:17, 328:4, 329:3, 329:13, 331:20, 333:6, 335:6, 336:2, 337:8, 337:19, 338:2, 338:24, 339:12, 339:24, 340:24, 348:20, 365:15, 365:21, 365:23, 366:21

ISLAND [1] - 1:8 Island's [2] - 299:3, 327:13 issue [19] - 13:25, 17:14, 32:21, 41:10, 49:6, 62:9, 93:12, 101:9, 222:14, 223:20, 241:7, 241:8, 243:6, 243:12, 243:15, 278:9, 279:2, 281:24, 338:19 issues [6] - 14:3, 102:25, 103:4, 116:16, 116:17, 242:17 IT [6] - 3:4, 3:9, 3:13, 195:5, 312:6, 312:8 item [2] - 31:7, 98:12 itinerary [2] - 144:7, 147:9 itself [2] - 202:20, 210:10
J
Jack's [1] - 366:14 January [6] - 76:14, 161:8, 164:10, 313:23, 316:5 Jeff [1] - 299:10 Jersey [1] - 106:21 Jim [1] - 84:4 job [16] - 30:25, 60:23, 104:19, 104:20, 209:2, 209:7, 211:2, 211:4, 211:6, 213:18, 224:24, 252:13, 252:15, 266:3, 290:2, 358:17 jobs [1] - 270:11 John [10] - 82:11, 82:24, 84:5, 84:6, 84:7, 84:11, 263:6, 263:11, 274:4, 343:18 john [1] - 84:6 John's [2] - 82:17, 343:22 joke [34] - 41:19, 48:10, 82:14, 178:16, 178:18, 192:15, 201:17, 202:7, 202:13, 202:15, 202:18, 202:19, 202:20, 203:4, 203:5, 203:17, 205:19, 206:12, 206:16, 206:17, 206:19, 228:17, 229:11, 236:17, 236:25,

237:5, 237:6, 237:7, 237:8, 262:6, 263:10, 263:12, 360:4, 360:6
joked [2] - 38:14, 62:22
jokes [16] - 47:19, 48:14, 121:2, 204:11, 236:8, 236:11, 237:20, 238:12, 239:19, 264:23, 269:4, 271:7, 271:9, 271:10
joking [5] - 41:20, 257:11, 258:7, 258:9, 270:6
joyride [1] - 302:15 joyrides [1] - 302:20 Judge [21] - 8:21, 10:4, 11:3, 11:7, 11:20, 12:5, 12:7, 12:9, 15:13, 15:18, 15:19, 16:7, 17:6, 17:12, 17:18, 18:15, 19:4, 314:23, 314:24, 315:2, 315:16 judge [3] - 30:22, 320:12, 320:15 Judge's [2] - 14:18, 91:2 July [24] - 73:17, 73:22, 75:6, 75:18, 130:16, 130:18, 130:19, 130:24, 132:9, 133:3, 171:24, 183:24, 187:24, 207:5, 212:6, 214:9, 214:10, 214:11, 214:13, 214:17, 272:17, 285:15, 285:21, 330:18 jump [149] - 31:6, 32:9, 32:20, 33:8, 33:11, 33:15, 36:11, 36:20, 36:23, 37:4, 37:8, 37:16, 37:18, 38:17, 38:18, 39:22, 42:20, 42:21, 76:6, 101:10, 104:14, 128:17, 128:19, 128:22, 128:25, 129:7, 137:8, 140:10, 140:25, 141:18, 143:9, 143:10, 147:12, 147:16, 148:12, 148:18, 149:4, 149:6, 149:7, 149:13, 151:5, 164:14, 171:10, 172:20, 172:24, 173:3, 173:21, 174:2,

South Shore Court Reporting (631) 235-6218

15
174:12, 185:3, 187:5, 200:23, 201:8, 202:3, 203:11, 216:22, 216:24, 217:4, 217:6, 217:8, 219:18, 219:20, 221:8, 232:7, 235:19, 264:17, 275:5, 275:7, 275:11, 287:21, 287:24, 288:2, 288:6, 288:14, 289:3, 289:6, 289:9, 289:19, 289:23, 290:8, 291:9, 294:10, 294:12, 294:14, 300:2, 301:24, 302:6, 302:13, 302:14, 302:24, 303:14, 303:19, 303:21, 303:24, 304:4, 304:6, 304:10, 305:5, 309:12, 309:14, 316:23, 317:6, 317:10, 317:13, 317:15, 317:23, 318:16, 318:20, 318:21, 321:11, 322:24, 323:3, 325:21, 325:24, 338:9, 338:13, 349:25, 351:24, 353:11, 353:16, 360:20, 361:3, 361:4, 361:6, 361:20, 361:22, 361:23, 362:2, 362:5, 362:12, 362:16, 362:19, 363:12, 363:15, 363:17, 366:21, 366:24, 366:25, 372:23, 372:25, 373:24, 374:4, 374:11, 374:12
jumped [6] - 37:19, 63:23, 148:17, 366:7, 373:6, 373:12
jumper [1] - 306:5 Jumpers [1] - 348:14 jumpers [17] - 48:21, 62:2, 64:17, 99:13, 146:20, 148:24, 150:5, 291:8, 303:15, 317:14, 322:17, 324:3, 325:20, 332:16, 332:17, 332:20, 348:12 jumping [41] - 37:14, 71:3, 74:22, 75:7, 75:21, 76:11, 76:13, 76:20, 85:10, 85:17, 108:12, 108:17,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 408 of 425 PageID #: 4575

117:12, 147:18, 147:25, 148:15, 148:17, 149:2, 149:20, 150:10, 156:11, 164:7, 184:25, 185:2, 185:11, 187:8, 233:5, 255:12, 289:13, 289:15, 290:14, 295:21, 304:22, 316:4, 351:8, 353:16, 371:13, 373:2, 376:2, 376:3
Jumping [2] - 61:6, 366:14
jumps [54] - 31:20, 36:25, 37:3, 37:12, 40:8, 42:8, 42:15, 42:21, 61:11, 61:24, 117:12, 128:24, 129:4, 144:24, 147:20, 149:14, 150:3, 150:6, 150:11, 150:12, 150:14, 150:15, 150:16, 150:19, 151:2, 151:8, 162:16, 217:20, 221:9, 289:2, 301:17, 301:21, 302:18, 302:21, 303:3, 303:11, 303:17, 304:2, 304:14, 304:21, 309:19, 316:5, 316:6, 317:17, 318:11, 318:12, 319:3, 320:9, 321:7, 341:5, 344:20, 361:13
June [20] - 36:12, 36:24, 36:25, 77:4, 103:14, 133:5, 187:24, 188:4, 196:14, 207:9, 207:10, 210:19, 272:16, 272:18, 285:15, 285:20, 285:24, 301:12, 330:15, 330:17
K
Kansas [2] - 248:3, 248:7
Karen [1] - 1:20 KAREN [2] - 390:3, 390:20 keep [14] - 24:14, 89:9, 89:10, 112:5, 128:12, 147:20, 158:5, 197:13, 250:11, 303:2, 306:3,

320:22, 324:25, 339:18
Kellinger [6] - 65:11, 71:4, 71:5, 261:20, 262:4, 273:24
Kellinger's [1] 273:9
Kengle [27] - 136:3, 136:5, 137:2, 137:22, 139:3, 139:9, 142:10, 142:11, 156:3, 156:7, 156:16, 156:18, 156:19, 170:2, 170:15, 171:3, 200:22, 201:25, 202:9, 202:23, 205:18, 205:23, 219:21, 232:3, 235:18, 252:25, 355:5
Kengle's [4] 138:21, 168:7, 218:4, 233:14
kept [6] - 65:15, 74:24, 166:4, 260:22, 303:4, 367:17
key [2] - 127:10, 218:22
kid [1] - 265:23 kidding [1] - 192:21 killed [2] - 340:4, 340:21 kind [63] - 49:15, 54:11, 59:25, 64:4, 82:18, 83:2, 88:25, 89:12, 101:3, 118:14, 121:14, 122:14, 128:16, 145:7, 162:14, 166:8, 179:21, 183:5, 185:11, 186:2, 186:3, 200:12, 203:8, 206:7, 218:22, 226:17, 237:14, 256:21, 264:11, 266:3, 266:4, 288:14, 293:20, 294:5, 302:11, 302:12, 302:13, 302:24, 304:6, 315:12, 318:15, 319:18, 319:19, 328:25, 329:15, 329:23, 333:8, 333:13, 333:14, 342:4, 355:3, 361:14, 367:4, 367:22, 369:5, 369:14, 370:20, 373:11, 373:25, 375:15, 377:22, 377:25, 384:6 kindly [2] - 18:2,

91:3 kinds [4] - 233:3,
269:7, 318:25, 367:20 Kinesiology [1] -
245:19 KingAir [2] - 318:8,
319:7 knowing [6] -
204:17, 208:2, 240:12, 255:3, 369:21
knowledge [11] - 8:9, 20:23, 38:3, 46:21, 46:25, 53:15, 63:13, 78:19, 220:15, 334:18, 385:14
known [8] - 46:18, 46:20, 51:17, 63:3, 65:12, 113:24, 292:22, 352:25
knows [29] - 117:5, 155:25, 156:13, 156:14, 206:14, 213:14, 221:9, 254:21, 255:13, 255:14, 255:17, 255:18, 255:19, 255:21, 264:24, 277:3, 277:17, 277:19, 277:24, 277:25, 278:2, 327:9, 352:16, 377:25, 381:8
kosher [2] - 245:25, 246:5
L
L.A [7] - 145:3, 145:4, 145:6, 146:3, 162:2, 162:8, 162:19
labor [1] - 238:9 lack [4] - 54:3, 246:2, 375:20, 376:24 LAID [1] - 327:5 laid [7] - 196:6, 326:21, 327:4, 327:8, 327:15, 327:25, 328:21 LaMendola [3] 1:21, 390:3, 390:20 land [4] - 33:17, 37:14, 143:4, 366:25 landing [4] - 33:9, 33:10, 73:12, 75:6 language [1] - 239:9 large [4] - 146:12, 149:23, 249:16, 281:14 larger [1] - 281:4 largest [1] - 152:10

laser [2] - 245:3, 245:5
last [24] - 24:25, 36:21, 84:8, 88:4, 91:19, 92:5, 97:20, 98:7, 98:13, 100:4, 100:7, 114:17, 123:16, 151:19, 154:9, 154:20, 197:21, 300:2, 316:23, 317:6, 334:8, 334:23, 380:4, 380:10
lasted [1] - 64:25 late [7] - 60:8, 143:23, 163:5, 164:14, 191:12, 191:15, 191:22 Lauderdale [1] 164:12 laugh [1] - 206:21 laughed [4] - 117:14, 117:15, 237:8, 237:11 laughter [1] - 239:21 Lauren [11] - 62:4, 107:22, 226:18, 282:17, 284:9, 320:16, 320:20, 346:20 lavatory [1] - 337:12 law [4] - 159:12, 159:21, 288:21, 320:10 LAW [4] - 12:9, 12:13, 12:20, 13:2 Law [1] - 1:18 lawn [1] - 195:19 laws [3] - 112:12, 112:21, 113:11 lawsuit [13] - 10:13, 11:18, 182:17, 182:18, 211:17, 212:16, 212:19, 212:21, 218:15, 218:16, 252:17, 252:19, 384:10 lawyer [8] - 211:16, 218:21, 328:10, 328:21, 340:7, 340:9, 355:15, 383:5 laying [1] - 367:10 lead [1] - 121:21 leading [1] - 183:6 leads [2] - 121:18, 271:4 lean [1] - 231:20 leaning [1] - 230:22 learn [2] - 124:12, 199:9 learned [3] - 156:5, 220:2, 220:25

South Shore Court Reporting (631) 235-6218

16
learning [1] - 30:17 leasing [2] - 114:8, 131:4 least [5] - 193:10, 221:18, 300:18, 321:6, 328:16 leave [11] - 33:16, 33:19, 93:5, 93:6, 131:21, 143:15, 147:12, 164:11, 293:5, 312:13, 328:19 leaves [1] - 32:23 leaving [3] - 222:22, 230:23, 328:19 led [2] - 169:8, 171:4 leeway [2] - 147:13, 222:21 left [9] - 35:19, 44:5, 44:8, 44:16, 144:19, 193:21, 196:14, 248:20, 312:16 leg [2] - 87:5, 87:9 legal [17] - 110:3, 110:6, 112:17, 112:19, 190:2, 212:2, 212:7, 213:2, 219:12, 245:11, 246:3, 246:19, 246:20, 246:21, 246:23, 246:25, 311:11 legally [3] - 189:21, 288:7, 288:9 legs [1] - 349:21 LEID [1] - 327:5 less [6] - 60:22, 294:3, 297:25, 298:7, 319:6, 364:21 lessen [1] - 306:6 letter [1] - 168:23 letters [1] - 200:10 letting [1] - 356:24 level [2] - 115:20, 154:8 Lexington [1] 129:24 liability [2] - 211:10, 338:17 liar [1] - 265:14 license [2] - 308:19, 308:23 licensed [1] - 309:9 licenses [2] - 32:5, 141:13 licensing [1] 141:12 lie [13] - 178:14, 200:19, 264:25, 265:3, 273:16, 273:24, 274:4, 274:9, 274:14, 274:19,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 409 of 425 PageID #: 4576

274:23, 277:17, 282:25
lied [9] - 30:2, 265:7, 269:10, 274:24, 275:2, 275:4, 277:16, 283:14, 283:21
life [12] - 53:5, 53:22, 72:16, 74:17, 85:25, 87:3, 109:5, 109:6, 127:2, 186:12, 223:4, 265:24
Life [1] - 186:4 lifestyle [2] - 369:4, 369:22 lift [2] - 140:14, 234:21 light [7] - 50:15, 89:2, 89:9, 326:15, 326:16, 326:18 lighter [1] - 89:6 lightly [1] - 88:25 likelihood [3] 155:4, 235:7, 279:10 likely [3] - 64:9, 116:4, 149:21 line [5] - 45:8, 92:2, 157:3, 165:12, 257:11 LINE [1] - 391:5 lines [1] - 386:3 list [5] - 19:15, 49:18, 97:9, 215:12, 245:7 listed [2] - 19:20, 314:15 listen [7] - 90:10, 90:11, 110:13, 226:5, 333:5, 333:8, 333:13 listened [1] - 353:7 listening [1] - 359:9 lit [1] - 188:13 liter [1] - 107:15 literally [2] - 182:8, 196:22 litigating [1] - 238:5 live [7] - 131:3, 191:4, 224:19, 286:20, 293:19, 322:21, 366:17 lived [3] - 191:10, 293:23, 323:2 lives [1] - 286:14 living [4] - 182:5, 197:6, 249:15, 260:2 load [7] - 140:14, 165:5, 182:23, 182:24, 183:5, 198:2, 229:15 loads [1] - 320:4 locals [1] - 286:13 located [2] - 129:22, 343:24

location [4] - 45:10, 174:16, 191:9, 286:9
locations [2] - 63:8, 152:11
log [2] - 128:25, 260:3
logbook [1] - 303:13 logging [1] - 303:11 logistics [2] - 153:5, 251:12 logs [4] - 128:17, 128:19, 128:22, 129:7 LONG [1] - 1:8 longest [2] - 301:6, 301:10 longtime [1] - 269:22 look [60] - 37:2, 42:22, 42:23, 43:3, 43:5, 43:7, 49:17, 108:11, 108:15, 117:16, 117:18, 118:4, 118:9, 118:11, 118:13, 118:16, 121:6, 121:7, 121:8, 121:11, 122:10, 131:11, 132:12, 135:13, 136:17, 147:9, 153:16, 154:13, 157:7, 166:7, 180:21, 195:10, 195:13, 214:13, 221:13, 221:20, 248:25, 249:4, 249:11, 249:18, 249:23, 262:14, 262:18, 262:22, 264:20, 291:17, 304:6, 304:7, 307:5, 315:16, 334:21, 364:24, 368:12, 369:9, 369:18, 370:3, 374:21, 381:23, 382:25 looked [5] - 201:7, 216:24, 334:8, 344:12, 369:11 Looking [1] - 143:22 looking [10] - 66:23, 76:5, 121:9, 122:13, 171:10, 194:16, 222:20, 263:7, 263:14, 271:18 looks [12] - 117:20, 118:3, 118:6, 118:20, 201:10, 271:21, 346:3, 364:25, 365:6, 375:2, 375:5, 375:18 loose [2] - 233:8, 256:24 lose [5] - 208:25,

209:2, 209:3, 290:2, 373:4
losing [1] - 186:2 loss [4] - 103:6, 106:6, 182:21, 249:12 lost [5] - 87:3, 87:7, 87:13, 105:8, 107:9 lotion [1] - 368:3 loud [2] - 233:6, 332:6 low [1] - 318:17 Lowe [3] - 71:21, 72:9, 80:25 luau [3] - 327:14, 328:24, 329:24 lucky [1] - 318:8 lunch [1] - 263:2 Lush [1] - 246:10 LUSH [1] - 246:10 luxury [1] - 164:15 lying [10] - 30:15, 31:2, 89:11, 169:16, 169:24, 178:13, 273:19, 284:5, 284:13, 342:24
M
M-O-O-R-E [1] 189:10
machines [3] - 89:9, 325:14, 347:15
mad [1] - 43:23 Madam [1] - 349:13 mail [10] - 62:5, 133:18, 168:23, 211:12, 212:25, 214:14, 238:11, 242:25, 344:24, 345:2 mailed [1] - 153:15 mails [5] - 134:3, 224:2, 375:6, 375:8, 378:4 main [3] - 186:11, 316:7, 318:25 Maine [1] - 61:5 mainstream [2] 186:9, 186:14 maintain [7] - 9:21, 9:25, 29:19, 128:9, 147:21, 291:10, 291:13 maintained [2] 191:8, 248:6 maintenance [3] 151:18, 151:20, 152:2 major [4] - 119:8, 187:15, 213:19 majority [1] - 302:18

males [1] - 53:12 malice [2] - 51:24, 240:8 malicious [5] 240:9, 240:10, 240:15, 273:7, 371:14 maliciously [4] 258:18, 269:9, 272:24, 371:16 man [15] - 116:19, 116:21, 117:22, 126:14, 126:16, 126:24, 134:22, 202:11, 202:12, 206:25, 228:13, 228:19, 235:2, 241:20 man-to-man [1] 134:22 managed [1] 298:10 management [7] 153:5, 159:13, 159:15, 159:16, 159:18, 165:25, 177:18 Management [2] 166:5, 166:6 managementdriven [1] - 159:18 manager [3] - 57:5, 66:15, 282:21 manages [1] - 309:8 mandatory [2] 344:22, 345:3 manifest [3] - 43:2, 49:17, 226:19 manifester [2] 282:18, 282:19 manliness [1] 364:16 manly [4] - 364:22, 364:25, 365:7, 365:9 manner [9] - 52:7, 124:14, 171:5, 220:24, 227:21, 227:22, 228:9, 352:12, 362:5 mannerisms [1] 79:16 manual [1] - 101:4 manufacturers [3] 32:4, 141:12, 308:12 marathon [2] 261:17, 261:21 March [1] - 286:12 Marco [11] - 83:6, 256:10, 256:12, 257:8, 257:12, 257:22, 258:4, 258:17, 264:25,

South Shore Court Reporting (631) 235-6218

17
265:3, 265:9 Marcovitch [6] -
256:10, 257:8, 257:13, 258:4, 264:25, 265:9
marijuana [2] - 92:4, 97:15
mark [6] - 8:14, 8:17, 169:17, 199:14, 374:13, 386:8
marked [3] - 27:3, 27:9, 374:16
marriage [4] 189:21, 222:21, 243:3, 390:12
married [4] - 189:18, 189:22, 190:13, 190:17
Massachusetts [1] 113:24
Master [1] - 245:18 mastering [1] 318:16 material [1] - 383:10 matter [19] - 12:18, 34:19, 35:18, 49:6, 57:11, 58:19, 102:16, 113:12, 133:2, 133:15, 214:20, 214:23, 219:13, 225:2, 251:12, 252:3, 291:20, 377:3, 390:15 matters [1] - 338:18 maximum [1] - 183:3 MAXWELL [14] 13:7, 14:2, 14:10, 14:15, 14:22, 16:9, 16:21, 16:25, 17:11, 17:25, 18:3, 18:6, 18:8, 18:10 Maxwell [1] - 13:8 MAYNARD [1] - 1:8 Maynard [35] - 5:6, 35:9, 36:7, 38:24, 39:5, 56:19, 59:6, 67:3, 67:9, 68:2, 78:9, 133:4, 135:20, 136:22, 137:3, 137:19, 156:9, 168:6, 168:8, 168:17, 169:15, 171:9, 171:12, 224:10, 233:12, 235:8, 242:2, 256:25, 274:19, 286:3, 344:9, 360:19, 362:13, 372:14, 385:23 maynard [1] - 386:12 Maynard's [7] 55:21, 171:16,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 410 of 425 PageID #: 4577

171:22, 172:4, 192:23, 193:12, 286:10
meal [1] - 186:21 mean [62] - 49:23, 52:13, 53:4, 69:13, 70:18, 97:8, 111:16, 111:17, 111:18, 111:20, 114:9, 118:6, 119:7, 121:6, 126:20, 127:15, 134:8, 136:18, 142:9, 144:3, 149:9, 153:24, 155:13, 164:5, 184:13, 187:15, 197:4, 215:5, 225:22, 227:22, 229:12, 235:21, 237:16, 241:4, 248:24, 250:9, 257:19, 262:5, 264:16, 270:25, 271:2, 286:13, 294:21, 299:5, 301:4, 301:17, 303:8, 315:7, 332:4, 332:16, 345:15, 346:19, 346:20, 350:7, 364:12, 364:24, 366:25, 367:3, 372:21, 381:9, 381:12, 382:11 meaning [1] - 51:25 means [10] - 111:9, 111:11, 111:12, 169:15, 217:9, 317:7, 339:20, 340:13, 375:14, 381:16 meant [7] - 49:14, 51:20, 51:24, 74:18, 248:11, 381:20 media [2] - 97:14, 377:17 medical [12] - 10:13, 11:8, 14:3, 17:14, 17:15, 90:22, 244:24, 244:25, 245:10, 245:13, 245:15, 368:15 medically [1] - 10:20 medication [3] 19:21, 20:6, 20:10 medications [18] 7:6, 7:8, 7:13, 8:13, 9:11, 9:12, 9:15, 9:18, 10:11, 13:17, 13:18, 17:16, 18:23, 19:10, 19:25, 20:14, 20:20, 20:23 meet [7] - 24:20, 184:15, 294:8,

294:11, 294:16, 314:14, 350:8
meeting [15] - 36:7, 36:9, 41:2, 41:4, 41:9, 41:24, 42:5, 42:6, 61:22, 82:24, 104:4, 170:4, 213:24, 344:23, 345:3
meetings [2] - 36:4, 100:23
member [2] - 345:10, 360:7
members [1] - 52:25 Memorial [1] 129:24 memories [1] - 21:2 memory [16] - 20:7, 20:15, 20:20, 20:25, 21:4, 21:7, 21:9, 21:11, 21:12, 21:13, 21:15, 21:20, 21:25, 34:6, 159:10, 350:16 men [3] - 120:2, 121:10, 121:12 mental [2] - 147:21, 371:2 mention [3] - 222:13, 338:10, 353:25 mentioned [26] 1:20, 58:22, 62:3, 65:11, 66:14, 123:9, 142:12, 157:6, 157:8, 166:21, 172:14, 175:14, 191:9, 210:22, 212:12, 286:11, 307:21, 326:20, 327:14, 329:18, 341:4, 347:12, 354:4, 354:8, 354:11, 362:7 mentioning [2] 35:15, 40:19 mess [2] - 90:15, 183:7 messing [1] - 41:17 met [19] - 4:19, 4:22, 24:6, 24:7, 24:22, 24:25, 46:21, 180:4, 182:19, 184:20, 190:6, 191:11, 206:6, 210:9, 239:3, 294:19, 294:24, 314:16 methamphetamine [1] - 97:16 methamphetamine s [1] - 97:21 method [1] - 162:21 Mexican [1] - 145:8 Mexico [4] - 145:4, 162:3, 162:8, 162:19

Michael [2] - 273:13, 273:16
middle [5] - 15:13, 103:17, 103:24, 144:20, 347:3
midsummer [1] 56:23
might [51] - 30:25, 40:18, 45:21, 46:12, 48:6, 53:8, 63:11, 63:24, 93:2, 93:3, 99:18, 99:24, 109:16, 117:24, 121:7, 121:21, 122:10, 131:10, 141:22, 170:25, 171:15, 204:12, 215:13, 219:11, 220:3, 232:8, 232:14, 240:11, 240:23, 261:23, 261:25, 262:6, 263:9, 263:15, 271:17, 283:9, 299:7, 320:8, 348:10, 350:10, 352:2, 353:9, 364:12, 365:12, 366:8, 366:18, 382:6, 383:19, 383:21, 384:18, 386:25
Mike [3] - 114:16, 114:18, 273:19
mile [1] - 347:2 miles [1] - 288:11 million [1] - 368:19 mind [8] - 34:8, 68:15, 68:16, 109:14, 110:3, 278:24, 281:7, 320:22 mine [1] - 51:19 minimal [1] - 146:23 minor [3] - 153:6, 181:20, 187:15 minute [18] - 14:17, 40:13, 44:6, 44:19, 49:4, 68:14, 68:19, 71:24, 159:13, 178:3, 205:17, 229:14, 253:21, 283:3, 318:3, 318:12, 350:10 minutes [9] - 16:12, 35:9, 175:24, 207:17, 296:10, 317:8, 317:25, 318:22, 319:4 misread [1] - 232:15 miss [1] - 320:2 Miss [1] - 36:20 Missouri [20] - 55:15, 61:10, 110:23, 129:12, 129:19, 129:25, 130:20,

132:2, 132:3, 143:16, 143:20, 143:25, 146:2, 151:14, 151:15, 151:24, 195:24, 196:9, 196:21
mistake [11] - 221:2, 221:16, 222:2, 222:6, 222:12, 223:5, 223:24, 224:13, 225:3, 225:25, 226:14
mistaken [4] 121:13, 121:25, 122:11, 233:14
mistakes [15] 219:11, 219:15, 220:5, 220:6, 220:8, 220:9, 220:12, 220:13, 220:14, 221:25, 222:8, 223:13, 223:16, 229:22, 230:8
mitt [1] - 118:19 mix [2] - 81:24, 281:23 mixed [4] - 38:17, 48:19, 55:20, 166:5 molesting [1] 380:23 mom [2] - 82:12, 114:6 moment [18] - 10:25, 28:4, 28:15, 34:15, 42:16, 44:23, 48:2, 102:6, 115:22, 162:15, 189:8, 220:11, 223:18, 267:6, 271:14, 274:8, 281:7, 344:8 moments [6] - 44:12, 123:7, 184:8, 184:9, 240:22, 365:11 Monday [2] - 37:12, 113:15 money [27] - 40:6, 162:22, 163:2, 209:25, 210:3, 215:10, 217:15, 217:18, 218:2, 218:11, 218:14, 218:18, 219:17, 219:20, 219:24, 249:3, 249:8, 249:14, 249:24, 250:2, 250:3, 250:10, 289:15, 311:19, 315:24, 316:2, 373:6 Monkey [11] - 82:11, 82:17, 82:25, 83:2, 83:14, 84:4, 84:5, 84:6, 84:9, 84:10,

18
263:11 Monkey's [1] - 83:12 month [7] - 153:13,
160:25, 187:20, 248:25, 255:2, 272:15, 287:9
months [18] - 60:2, 76:20, 76:21, 88:17, 89:3, 180:17, 180:18, 180:20, 181:6, 184:7, 211:25, 224:12, 272:19, 285:11, 285:15, 285:20, 285:23, 330:13
Moore [10] - 105:18, 105:20, 105:21, 105:23, 113:23, 115:3, 189:10, 189:14, 189:19, 190:4
MOORE [1] - 105:22 Moriches [1] - 55:22 morning [7] - 4:15, 4:17, 12:11, 17:9, 103:25, 126:3, 299:25 mornings [1] 123:10 most [34] - 31:23, 31:25, 65:15, 81:15, 81:25, 85:25, 87:2, 97:14, 109:12, 109:14, 110:15, 116:4, 127:12, 145:5, 167:15, 170:19, 189:21, 191:15, 273:11, 301:20, 319:3, 320:25, 337:23, 342:22, 342:25, 343:2, 343:8, 343:11, 343:13, 364:15, 365:8, 365:10, 366:6, 375:5 mostly [8] - 65:14, 133:18, 183:21, 191:14, 252:19, 316:14, 341:13, 375:7 mother [1] - 115:4 motion [2] - 6:22, 6:25 motivation [5] 171:14, 171:17, 171:18, 171:23, 234:7 motivations [2] 171:15, 172:2 motives [3] - 200:16, 235:15, 235:17 mountain [2] - 86:8, 86:9 mouth [2] - 168:14, 169:2 move [6] - 69:15,

South Shore Court Reporting (631) 235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 411 of 425 PageID #: 4578

91:3, 106:15, 123:18, 152:18, 248:9
moved [5] - 35:19, 106:18, 132:11, 132:15, 247:25
moving [2] - 89:10, 319:24
MR [331] - 4:8, 6:17, 6:20, 6:24, 7:2, 7:10, 7:16, 8:3, 8:4, 8:5, 8:16, 8:18, 8:19, 8:23, 8:24, 9:3, 9:6, 9:7, 9:8, 10:6, 10:21, 10:23, 10:24, 11:4, 11:22, 11:23, 11:25, 12:2, 12:11, 12:15, 12:21, 13:6, 13:9, 14:5, 14:6, 14:13, 14:19, 14:20, 14:23, 16:15, 16:23, 16:24, 17:2, 17:9, 17:21, 18:2, 18:4, 18:7, 18:9, 18:13, 19:2, 19:6, 19:13, 19:17, 19:22, 21:16, 22:7, 25:20, 25:23, 25:25, 27:22, 28:14, 28:16, 28:17, 28:19, 30:11, 32:11, 34:10, 39:7, 40:15, 46:2, 46:5, 47:12, 58:7, 59:18, 67:21, 68:8, 68:10, 68:13, 68:16, 68:18, 68:21, 76:2, 79:11, 90:21, 90:24, 90:25, 91:5, 91:7, 91:8, 91:10, 92:6, 92:11, 92:13, 92:15, 92:20, 93:4, 93:7, 93:11, 93:14, 93:17, 93:19, 93:21, 94:3, 94:9, 94:12, 94:17, 94:20, 95:4, 95:6, 95:9, 96:4, 96:24, 97:22, 98:3, 98:8, 98:15, 115:9, 119:11, 119:14, 122:21, 122:25, 123:13, 123:15, 123:16, 124:2, 124:22, 124:24, 125:2, 125:3, 125:7, 135:4, 135:6, 135:10, 135:12, 137:9, 137:25, 138:13, 138:15, 139:5, 139:15, 140:23, 142:14, 142:16, 157:15, 157:18, 157:21, 158:3, 158:10, 158:11, 158:12, 158:24,

165:9, 165:11, 165:13, 166:13, 166:20, 167:4, 167:8, 167:12, 167:14, 167:23, 168:10, 172:21, 174:3, 178:22, 178:24, 179:2, 179:4, 179:9, 180:7, 180:10, 180:13, 203:21, 204:7, 205:20, 206:2, 207:8, 211:19, 211:21, 215:19, 216:9, 217:10, 218:12, 227:10, 229:24, 230:4, 230:9, 233:18, 234:8, 234:19, 234:22, 234:25, 235:2, 236:4, 236:6, 237:22, 243:21, 255:25, 256:4, 259:4, 261:10, 265:11, 266:20, 267:4, 267:14, 267:20, 268:6, 268:10, 268:16, 268:21, 273:3, 276:9, 276:16, 276:20, 278:6, 278:23, 279:9, 279:12, 280:5, 280:13, 281:6, 281:8, 281:10, 281:11, 281:19, 282:12, 284:15, 284:17, 284:21, 310:8, 313:12, 321:20, 326:24, 327:2, 327:3, 327:6, 330:8, 336:9, 336:14, 336:18, 337:12, 337:13, 338:4, 338:25, 339:9, 339:13, 339:14, 339:15, 339:17, 340:8, 345:18, 346:9, 346:13, 349:2, 349:5, 349:7, 349:9, 349:15, 349:17, 350:11, 350:18, 354:22, 355:4, 355:23, 356:2, 356:3, 356:6, 356:9, 356:11, 356:15, 356:17, 356:23, 357:3, 357:8, 357:17, 358:20, 358:24, 359:25, 360:16, 361:17, 362:23, 366:15, 369:6, 374:9, 374:13, 378:9, 378:13, 378:14, 378:16, 378:18, 378:22, 378:25,

379:3, 379:8, 379:10, 379:12, 379:13, 379:17, 379:19, 379:20, 379:24, 380:2, 380:5, 380:7, 380:11, 381:21, 381:24, 382:2, 382:3, 382:13, 383:20, 383:24, 384:13, 384:15, 384:17, 384:19, 384:24, 385:5, 385:7, 385:9, 385:16, 385:21, 386:7, 386:14, 386:15, 386:19, 386:21, 386:23, 386:25, 387:4
MS [14] - 13:7, 14:2, 14:10, 14:15, 14:22, 16:9, 16:21, 16:25, 17:11, 17:25, 18:3, 18:6, 18:8, 18:10
mug [2] - 377:20, 377:23
Multi [2] - 374:14, 389:14
Multi-page [2] 374:14, 389:14
multiple [1] - 174:6 Murphy [1] - 2:20 muscle [4] - 86:13, 368:4, 368:10, 369:17 muscle-head [1] 369:17 muscular [2] 271:17, 368:13 music [8] - 331:11, 331:14, 333:5, 333:8, 333:13, 333:14, 333:15, 333:21 must [12] - 42:7, 42:14, 63:10, 84:17, 142:8, 185:7, 185:19, 288:9, 288:10, 288:11, 288:12, 289:18
N
nailed [1] - 270:23 naked [5] - 262:19, 262:20, 262:23, 263:7, 263:14 name [30] - 4:10, 4:18, 36:22, 49:12, 49:22, 72:17, 82:12, 84:7, 84:8, 97:5, 105:14, 105:16, 105:17, 105:23, 114:4, 114:11,

114:16, 114:17, 122:16, 189:9, 189:11, 214:3, 214:5, 244:21, 246:7, 246:10, 247:6, 270:25, 350:9, 350:10
named [4] - 37:9, 82:11, 106:2, 361:20
names [8] - 50:3, 120:22, 349:19, 349:23, 350:2, 350:6, 350:15, 350:21
narrative [4] - 59:13, 59:19, 59:22, 268:17
nature [7] - 54:20, 54:22, 165:7, 185:22, 193:18, 286:9, 329:10
near [1] - 174:24 necessarily [2] 53:9, 141:21 necessary [4] - 8:15, 8:22, 106:24, 174:16 neck [2] - 229:18, 231:19 need [33] - 9:2, 9:4, 13:24, 26:2, 86:21, 91:8, 110:13, 113:15, 120:13, 138:12, 147:19, 148:9, 149:6, 152:19, 157:25, 181:21, 223:17, 226:8, 226:9, 227:21, 234:21, 241:2, 247:12, 247:14, 254:13, 283:18, 299:21, 305:18, 339:15, 339:18, 349:2, 363:20, 373:5 needed [16] - 82:4, 82:8, 83:21, 126:6, 151:17, 151:21, 182:20, 194:21, 195:4, 225:6, 228:22, 229:2, 232:6, 292:8, 323:14, 324:6 needing [2] - 182:20, 363:22 needs [1] - 112:7 negative [1] - 83:24 negatively [1] 243:2 neighborhood [2] 191:2, 318:2 Neptune's [10] 63:24, 366:7, 366:13, 366:18, 367:18, 367:19, 367:20, 370:20, 372:2, 373:15 neptune's [1] 366:11

South Shore Court Reporting (631) 235-6218

19
never [22] - 90:14, 91:17, 118:12, 165:18, 185:13, 193:25, 227:20, 239:3, 257:22, 261:19, 262:3, 275:10, 275:21, 291:23, 294:25, 296:21, 298:24, 324:18, 324:22, 325:24, 338:18, 354:4
NEW [2] - 1:2, 388:4 new [7] - 81:20, 81:23, 83:17, 85:2, 106:22, 106:24, 254:24 New [24] - 1:13, 1:22, 2:5, 2:9, 4:5, 60:6, 106:21, 111:3, 114:20, 130:25, 131:2, 131:9, 149:23, 210:6, 210:9, 243:24, 282:5, 299:14, 300:9, 300:11, 311:2, 388:25, 390:4 newbie [3] - 341:13, 341:25, 342:5 newbies [2] - 341:16, 341:19 newly [1] - 266:14 newsletters [1] 327:20 next [20] - 30:7, 36:3, 108:12, 108:15, 108:16, 123:24, 143:8, 144:9, 144:10, 160:16, 160:20, 160:21, 177:22, 194:12, 210:14, 290:16, 299:25, 324:8, 328:7, 328:8 nice [13] - 61:24, 121:5, 122:17, 122:23, 123:5, 127:7, 149:16, 181:15, 282:23, 287:6, 299:11, 374:12, 376:17 nicely [2] - 167:21, 167:24 nicer [1] - 234:23 nickname [6] - 49:7, 49:9, 49:21, 50:4, 50:5, 72:21 nicknames [3] 49:19, 49:24, 72:16 nicotine [1] - 91:17 night [7] - 99:17, 103:17, 103:24, 188:11, 334:8,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 412 of 425 PageID #: 4579

334:23, 372:2 nimbus [1] - 319:22 nine [4] - 27:18,
154:14, 182:24, 306:19
ninety [1] - 188:25 no-brainer [1] 304:12 nobody [5] - 105:9, 204:10, 206:12, 346:12, 346:14 noise [2] - 231:9, 231:11 noisy [2] - 231:4, 231:8 non [2] - 333:11, 356:5 non-party [1] - 356:5 non-straight [1] 333:11 none [4] - 7:7, 84:19, 209:21, 321:5 normal [5] - 70:23, 171:6, 206:7, 207:3, 385:8 normally [4] - 80:14, 86:4, 146:4, 207:4 norms [1] - 370:7 north [1] - 61:8 Norway [5] - 179:25, 180:15, 184:5, 184:7, 189:5 Notary [4] - 1:22, 4:4, 388:25, 390:3 notations [1] 128:18 note [1] - 105:25 noted [2] - 120:5, 387:9 notes [9] - 26:15, 110:11, 112:8, 128:13, 129:2, 129:6, 268:4, 268:8, 268:12 nothing [13] - 38:4, 68:12, 158:5, 200:17, 203:25, 218:7, 233:4, 244:9, 258:25, 292:6, 358:13, 374:10, 378:17 notice [1] - 386:20 Notice [3] - 1:19, 386:9, 386:17 noticed [1] - 386:10 notification [1] 259:25 November [28] 67:6, 68:3, 151:19, 151:25, 153:9, 153:12, 153:25, 154:4, 154:5, 154:11,

154:15, 154:17, 154:19, 155:6, 157:14, 158:17, 159:5, 160:14, 160:19, 161:6, 161:7, 161:11, 178:7, 195:18, 197:2, 255:2, 286:12, 313:18
Novembers [1] 154:9
nowhere [1] - 248:14 Number [1] - 12:19 number [15] - 16:14, 128:6, 129:4, 140:19, 141:24, 164:22, 170:22, 187:14, 193:20, 292:18, 297:11, 303:14, 341:5, 341:6 numbers [2] 279:14, 370:4 numerous [1] 48:17 nurse [1] - 89:20 nurses [1] - 89:21
O
o'clock [2] - 73:17, 103:25
oath [6] - 3:16, 6:3, 137:13, 137:16, 342:23, 388:10
object [8] - 7:11, 124:14, 138:14, 138:15, 157:19, 158:7, 261:10, 386:16
objected [3] - 10:17, 12:24, 14:23
objecting [1] - 68:11 Objection [1] - 357:8 objection [96] - 6:17, 7:18, 13:20, 21:16, 30:11, 32:11, 34:10, 34:12, 39:7, 39:9, 46:2, 46:3, 47:12, 59:18, 59:21, 76:2, 79:11, 90:21, 92:24, 96:4, 96:24, 115:9, 119:12, 119:14, 119:15, 123:25, 124:5, 124:7, 125:10, 135:4, 137:9, 137:25, 138:17, 139:5, 139:15, 168:10, 172:21, 174:3, 203:21, 204:7, 205:20, 206:2, 211:19, 211:21, 215:19, 216:9,

217:10, 218:12, 227:10, 233:18, 234:8, 237:22, 243:21, 259:4, 265:11, 266:20, 267:4, 267:14, 267:20, 268:6, 268:16, 276:9, 278:6, 278:23, 279:9, 279:12, 280:5, 280:13, 281:19, 282:12, 310:8, 321:20, 326:24, 330:8, 338:4, 338:25, 340:8, 345:18, 346:9, 346:13, 350:18, 354:22, 355:4, 356:15, 356:17, 357:17, 358:20, 358:24, 360:2, 360:16, 361:17, 362:23, 369:6, 374:9, 378:17, 380:11
objectionable [1] 10:10
objections [7] - 3:10, 11:8, 46:6, 124:23, 125:11, 125:13, 268:22
obligated [1] 335:20
obtain [1] - 68:3 obvious [1] - 304:10 obviously [8] 89:19, 112:5, 114:5, 161:2, 197:23, 208:16, 248:7, 291:8 occasion [9] - 91:16, 98:20, 120:10, 236:17, 299:13, 326:6, 326:7, 329:23, 329:25 occasions [6] 180:11, 241:22, 297:4, 297:9, 297:12, 329:24 occur [1] - 272:10 occurred [17] 51:13, 100:6, 103:12, 103:13, 103:15, 172:20, 172:23, 187:2, 187:3, 187:6, 260:8, 272:8, 272:9, 295:23, 316:24, 329:12, 361:5 occurrence [1] 128:14 occurring [1] - 331:4 October [8] - 144:18, 144:20, 146:3, 146:7,

150:2, 150:19, 151:25, 195:18
odd [1] - 224:21 OF [4] - 1:2, 1:15, 388:4, 388:6 of.. [1] - 119:24 off-putting [1] 352:3 offend [2] - 122:12, 372:8 offended [18] - 40:4, 43:20, 51:7, 51:10, 51:22, 51:23, 122:13, 122:17, 122:19, 139:20, 172:15, 204:12, 204:24, 236:10, 237:13, 354:13, 354:14, 370:14 offending [1] - 51:19 offensive [6] - 56:11, 56:12, 122:7, 122:8, 368:24, 369:2 offer [2] - 125:5, 213:9 offered [4] - 15:8, 15:25, 200:11, 208:6 offering [1] - 133:3 Office [1] - 129:16 office [13] - 16:16, 36:3, 44:5, 77:2, 197:8, 197:9, 226:19, 247:23, 282:19, 282:21, 346:5, 347:16 officer [1] - 3:15 official [3] - 237:17, 282:20, 317:8 often [8] - 36:4, 38:14, 50:13, 87:22, 99:7, 126:17, 130:5, 243:2 oftentimes [2] 121:20, 290:25 old [6] - 58:4, 109:8, 126:22, 127:3, 303:10, 339:10 oldie [1] - 202:16 on-the-fly [1] 321:17 on-the-record [1] 95:16 once [18] - 11:20, 15:13, 125:7, 152:19, 165:11, 226:10, 228:24, 280:14, 293:9, 300:19, 302:5, 326:8, 326:9, 328:14, 363:2, 363:4, 367:12, 373:16 one [115] - 13:2,

South Shore Court Reporting (631) 235-6218

20
25:9, 25:10, 27:13, 27:17, 31:7, 32:2, 32:20, 34:23, 47:20, 48:7, 52:24, 54:8, 57:5, 59:23, 68:14, 68:19, 72:5, 72:16, 72:20, 78:15, 80:9, 89:10, 89:21, 92:3, 96:17, 97:13, 97:17, 99:7, 100:10, 100:13, 100:14, 107:14, 107:16, 109:7, 112:19, 119:17, 121:3, 123:17, 126:22, 127:3, 127:6, 132:22, 136:15, 136:18, 139:6, 140:19, 141:6, 141:17, 142:25, 159:15, 161:4, 161:18, 163:8, 163:16, 164:7, 164:16, 164:25, 165:22, 166:2, 171:7, 171:11, 177:8, 177:10, 177:18, 187:3, 187:6, 188:18, 188:24, 194:25, 198:8, 202:24, 210:22, 213:11, 215:22, 218:20, 223:17, 235:14, 235:17, 236:7, 248:10, 253:22, 258:5, 260:21, 263:10, 263:12, 272:4, 275:8, 278:19, 279:17, 280:4, 281:7, 289:11, 290:18, 294:20, 297:14, 297:15, 299:9, 299:12, 301:7, 304:14, 323:12, 327:23, 329:10, 338:19, 341:3, 342:11, 346:2, 350:2, 351:3, 354:9, 359:11, 368:19
ones [3] - 66:7, 324:3, 329:8
online [5] - 112:16, 112:18, 152:14, 154:6, 196:17
open [6] - 10:18, 11:15, 231:10, 306:13, 314:17, 381:6
open-ended [2] 10:18, 11:15
opened [3] - 54:8, 293:7, 304:11

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 413 of 425 PageID #: 4580

opening [2] - 304:8, 306:7
opens [1] - 322:15 operate [3] - 316:14, 317:21, 321:2 operation [7] 38:18, 142:12, 245:12, 295:10, 295:12, 353:11 operations [4] 159:17, 166:3, 177:19, 338:14 opinion [6] - 220:12, 223:16, 224:20, 278:19, 304:17, 304:18 opinions [1] - 74:25 opportunities [2] 170:8, 170:10 opportunity [13] 15:9, 29:22, 124:8, 143:5, 193:6, 193:9, 221:21, 223:11, 233:13, 233:17, 241:5, 286:2, 333:4 opposed [4] - 83:22, 206:11, 306:23, 354:20 opposite [4] - 53:6, 54:17, 189:6, 354:20 optimistic [1] - 75:5 option [2] - 322:13, 356:6 oral [1] - 263:25 order [9] - 1:19, 15:2, 68:2, 147:20, 147:21, 176:23, 321:21, 341:23, 361:5 orders [2] - 58:3, 76:20 ordinary [2] - 38:5, 48:3 Orelana [20] 134:24, 135:22, 139:22, 140:2, 140:14, 142:15, 169:25, 170:15, 200:21, 202:2, 202:6, 202:24, 219:19, 227:23, 229:5, 233:13, 235:19, 253:14, 355:3, 360:21 orelana [6] - 142:2, 173:8, 174:12, 174:20, 252:25, 253:12 Orelana's [2] - 136:4, 229:17 orientation [15] 38:9, 40:3, 40:20,

78:10, 137:24, 173:17, 173:23, 177:13, 227:14, 228:3, 241:25, 254:6, 258:10, 335:5, 354:19
originals [1] - 26:23 Orin [1] - 66:4 otherwise [2] 121:22, 171:6 ought [1] - 143:13 ourself [1] - 365:25 ourselves [1] 190:12 outcome [1] - 390:15 outdoors [1] - 374:3 outfit [1] - 376:12 outlined [2] - 101:3, 101:12 outside [9] - 35:11, 44:14, 92:21, 93:2, 95:5, 151:18, 151:21, 286:17, 347:15 outward [1] - 122:4 outwardly [1] 121:17 overkill [1] - 165:18 overly [1] - 115:14 overseas [4] 179:15, 180:5, 187:23, 189:3 oversee [1] - 245:11 owes [2] - 250:9, 311:18 own [5] - 71:9, 112:7, 114:18, 246:16, 315:13 owned [1] - 277:15 owner [13] - 101:5, 114:7, 114:20, 133:11, 134:5, 156:12, 211:7, 213:24, 214:4, 214:21, 219:6, 224:19, 335:10 owns [1] - 320:25
P
P.C [1] - 2:7 p.m [17] - 93:10, 95:8, 120:12, 126:4, 166:19, 235:5, 337:16, 350:14, 385:20, 387:9 P.O [1] - 4:13 pack [2] - 145:4, 292:8 package [1] - 233:24 packed [1] - 224:7

PAGE [3] - 389:4, 389:8, 391:5
page [24] - 26:25, 27:6, 27:14, 27:19, 258:20, 259:2, 259:7, 259:20, 259:22, 334:17, 374:14, 374:16, 374:25, 375:11, 376:15, 381:4, 381:6, 382:17, 383:12, 384:8, 389:9, 389:11, 389:14, 389:16
pages [5] - 382:20, 382:25, 383:9, 383:12
paid [15] - 150:15, 163:2, 163:4, 248:20, 250:6, 302:6, 302:9, 302:25, 309:12, 309:14, 309:17, 309:18, 310:3, 310:4, 311:22
painting [1] - 151:20 pair [1] - 306:4 paper [3] - 164:19, 168:21, 384:21 paperwork [1] 340:12 par [1] - 60:23 Parachute [3] 141:11, 266:15, 317:3 parachute [1] - 292:8 paradox [3] - 289:16, 289:17, 289:21 paradoxical [1] 55:3 Paris [2] - 146:11 part [39] - 13:14, 42:3, 47:21, 53:18, 57:6, 58:11, 81:16, 139:7, 172:24, 173:3, 182:11, 185:21, 185:24, 195:16, 212:13, 223:7, 245:11, 251:11, 252:18, 255:19, 273:22, 279:22, 281:2, 285:20, 286:8, 286:22, 288:3, 324:10, 331:9, 342:22, 342:25, 343:2, 343:8, 343:11, 343:13, 365:8, 365:10, 369:2 part-time [3] - 57:6, 195:16, 273:22 participants [1] 270:5 participate [1] 332:13

participated [3] 264:21, 270:6, 270:7
participating [2] 184:23, 283:8
particular [4] 140:13, 140:14, 163:10, 166:4
particularized [1] 15:4
particularly [3] 11:14, 126:3, 364:25
parties [18] - 3:6, 328:6, 328:25, 329:2, 329:6, 329:9, 329:12, 330:4, 330:20, 330:23, 331:5, 331:8, 331:20, 332:12, 333:15, 348:17, 390:13
partly [1] - 247:3 partner [12] - 113:22, 115:2, 182:2, 182:20, 189:7, 246:12, 246:14, 248:12, 248:15, 311:8, 311:10, 368:15 parts [6] - 33:11, 174:7, 180:14, 189:22, 286:18, 286:21 party [8] - 112:19, 327:14, 328:2, 328:21, 329:9, 329:16, 333:5, 356:5 passage [1] - 269:4 passed [2] - 170:7, 260:5 passenger [10] 134:18, 135:22, 155:24, 172:17, 255:16, 274:25, 302:20, 305:17, 307:20, 307:22 passengers [6] 36:2, 49:20, 126:9, 145:12, 145:16, 309:8 passing [2] - 327:19, 328:24 passionate [2] 148:5, 222:18 past [4] - 21:10, 21:21, 97:25, 132:11 path [1] - 281:21 paused [1] - 42:16 pay [7] - 146:21, 146:22, 162:18, 162:23, 219:18, 250:13, 311:17 paycheck [7] - 40:7, 42:10, 217:19, 218:3,

21
219:18, 219:22, 309:20
paychecks [2] 250:15, 250:16
paying [1] - 150:9 payment [1] - 162:20 payments [1] - 310:7 payroll [2] - 345:17, 345:19 peace [1] - 307:11 pecking [1] - 341:23 peers [2] - 264:9, 264:15 pen [1] - 334:24 pending [1] - 336:16 People [1] - 123:12 people [145] - 23:2, 32:3, 40:23, 48:19, 49:23, 50:2, 50:5, 54:16, 56:20, 60:3, 60:5, 60:20, 60:22, 61:15, 63:6, 63:15, 63:17, 63:21, 66:20, 66:22, 69:12, 69:15, 70:23, 71:17, 71:19, 72:2, 72:5, 72:20, 75:2, 81:23, 82:2, 83:22, 85:9, 100:24, 104:7, 104:8, 104:9, 104:13, 106:14, 107:18, 115:17, 116:25, 117:2, 117:10, 118:24, 119:2, 119:17, 120:4, 120:22, 121:7, 121:15, 121:18, 121:22, 121:24, 122:5, 122:15, 123:11, 127:5, 127:8, 145:19, 145:21, 145:25, 148:24, 151:4, 162:16, 184:12, 184:15, 184:18, 184:20, 185:22, 186:16, 186:18, 186:21, 186:23, 187:17, 193:24, 206:13, 206:21, 207:4, 209:12, 209:14, 215:21, 219:21, 221:15, 226:18, 236:9, 242:17, 249:3, 250:14, 259:9, 262:19, 262:21, 262:23, 263:19, 264:5, 264:23, 270:2, 289:13, 290:19, 293:18, 296:4, 303:11, 303:12,

South Shore Court Reporting (631) 235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 414 of 425 PageID #: 4581

322:21, 323:13, 324:2, 329:20, 331:22, 331:23, 332:2, 332:7, 332:18, 333:18, 333:22, 341:8, 349:20, 349:24, 350:7, 351:5, 351:9, 351:10, 351:13, 351:17, 351:21, 352:4, 352:13, 352:20, 353:4, 353:14, 353:15, 354:5, 365:14, 366:4, 368:16, 369:11, 370:6, 371:15, 372:4, 374:2, 377:20, 380:23, 381:8, 384:7
per [6] - 84:11, 99:16, 99:17, 309:12, 309:14, 326:10
per-week [1] 326:10
percent [11] - 53:11, 53:12, 130:9, 269:12, 279:4, 279:6, 279:7, 279:16, 279:17, 279:18
percentage [3] 246:15, 248:17, 279:8
perception [1] 80:16
perfect [4] - 28:10, 204:10, 209:21
perfectly [1] - 33:10 perform [3] - 174:17, 220:22, 301:17 performance [2] 305:3, 305:4 performed [4] 32:22, 218:5, 250:7, 321:7 performing [1] - 80:9 perhaps [2] - 31:2, 220:3 period [28] - 56:9, 56:22, 128:20, 131:20, 148:12, 148:18, 148:20, 151:6, 154:23, 160:16, 175:23, 187:20, 190:3, 190:17, 191:5, 240:20, 255:22, 295:21, 308:13, 312:7, 312:8, 313:5, 313:6, 318:4, 330:10, 330:12, 333:7, 338:14 periodically [1] 114:14

periods [1] - 315:23 perjury [1] - 6:7 permit [3] - 296:19, 296:23, 321:11 permitted [3] 296:21, 297:2, 299:20 Perry [1] - 66:4 person [32] - 31:23, 32:25, 33:24, 55:4, 61:12, 65:8, 80:11, 99:24, 101:11, 107:12, 107:15, 114:3, 118:7, 126:25, 156:22, 168:15, 171:6, 187:4, 203:24, 207:16, 226:12, 226:19, 226:20, 240:8, 242:16, 265:10, 282:23, 290:12, 324:6, 350:8, 370:25 personal [17] 102:25, 103:3, 103:6, 111:25, 112:7, 128:19, 222:15, 223:2, 223:4, 247:2, 247:7, 247:8, 247:16, 247:19, 248:10, 376:19 personalities [5] 71:16, 81:25, 82:4, 82:7, 82:10 personality [1] 105:11 personnel [1] 335:11 persons [1] - 272:5 perspective [1] 199:13 pet [3] - 103:8, 103:16, 186:2 Petretti [5] - 57:5, 66:15, 260:22, 272:6, 272:22 pharmacist [1] 20:24 phase [2] - 54:7, 54:10 phone [15] - 25:21, 27:25, 28:5, 59:24, 76:22, 110:4, 110:6, 110:9, 111:5, 112:9, 212:13, 224:2, 224:9, 224:15, 234:10 phonetic [1] - 273:13 phonetic) [1] 256:11 photo [2] - 376:17, 377:4 photographer [2] -

376:10, 376:18 photos [2] - 259:10,
376:19 physical [2] - 55:10,
55:11 physically [5] -
85:13, 130:22, 130:24, 186:25, 346:22
Physiology [1] 245:18
pick [2] - 59:23, 342:7
picked [9] - 61:23, 106:22, 106:23, 260:8, 341:16, 341:19, 341:24, 342:2, 342:10
picking [2] - 260:13, 384:21
pickings [1] - 332:22 picture [11] - 217:3, 263:2, 376:4, 376:7, 376:8, 376:11, 377:6, 377:15, 377:18, 377:22, 378:3 pictures [13] 262:18, 262:20, 262:22, 263:7, 263:14, 371:25, 372:6, 376:17, 376:22, 377:20, 377:23, 377:25 piece [5] - 168:20, 281:3, 281:4, 281:14 piecemeal [1] 302:5 pills [1] - 97:7 pilot [7] - 288:24, 291:3, 291:5, 291:7, 320:21, 321:3, 321:4 Pines [4] - 64:3, 64:11, 261:2, 296:5 pink [32] - 120:5, 120:6, 120:8, 120:9, 120:15, 121:5, 121:14, 122:17, 122:24, 123:5, 123:8, 125:15, 125:21, 125:23, 126:2, 126:14, 126:17, 126:24, 127:2, 127:7, 127:17, 127:19, 128:20, 344:11, 344:23, 346:3, 346:7, 347:14, 347:16, 348:5 pissed [1] - 213:4 pitcher [2] - 118:17 pitchers [1] - 118:18 pizza [1] - 321:22

place [35] - 1:20, 34:21, 34:22, 34:25, 36:12, 38:5, 53:16, 53:19, 55:7, 81:11, 94:14, 130:8, 133:22, 156:15, 156:17, 175:18, 181:16, 187:4, 195:6, 210:20, 221:8, 248:6, 250:12, 259:12, 286:10, 287:4, 298:14, 302:19, 325:8, 329:3, 332:6, 351:20, 372:10, 381:20, 382:5
places [2] - 146:17, 337:23
Plaintiff [4] - 1:5, 1:16, 2:4, 13:13
Plaintiff's [1] - 386:8 plan [2] - 149:13, 153:23 plane [7] - 33:16, 231:7, 277:12, 288:6, 318:7, 318:10, 351:24 planes [3] - 287:22, 287:25, 288:2 planets [1] - 287:5 planned [1] - 154:4 plans [4] - 179:14, 179:16, 179:17, 179:18 play [1] - 118:22 players [2] - 119:4, 127:10 playing [3] - 118:19, 118:25, 150:16 pleasant [1] - 185:13 plus [2] - 231:9, 361:13 point [44] - 32:25, 39:17, 51:8, 53:20, 53:21, 53:22, 54:2, 59:13, 67:2, 74:10, 92:24, 103:5, 120:20, 127:2, 156:8, 173:13, 174:13, 174:19, 174:22, 175:15, 187:7, 191:19, 209:6, 212:9, 212:13, 225:22, 229:4, 242:6, 242:10, 242:12, 261:24, 262:7, 263:10, 275:8, 290:22, 301:13, 308:15, 315:15, 342:11, 342:13, 342:14, 377:13 pointed [1] - 26:7 pointing [2] - 328:10, 328:12

22
polar [1] - 189:5 policy [4] - 235:9, 280:12, 280:16, 280:18 polluted [1] - 188:12 population [1] 148:8 pornography [5] 262:8, 262:10, 262:14, 262:16, 262:17 Port [1] - 299:10 portfolio [2] 376:20, 377:5 portion [2] - 18:17, 336:23 position [10] - 9:21, 10:2, 10:22, 208:4, 226:11, 266:12, 266:13, 269:21, 333:2, 333:3 positive [3] - 76:8, 81:13, 81:18 positively [1] - 81:9 possession [1] 203:10 possibility [9] 171:13, 244:4, 244:7, 244:8, 278:10, 278:11, 279:15, 282:2, 338:22 possible [20] - 9:19, 14:16, 78:23, 78:25, 108:8, 232:17, 232:19, 233:20, 233:21, 233:23, 233:24, 235:7, 235:14, 235:16, 242:20, 242:22, 262:25, 263:4, 279:21, 279:23 possibly [17] - 78:15, 238:15, 238:21, 240:12, 240:14, 240:23, 272:17, 278:8, 283:10, 289:11, 289:15, 320:20, 347:10, 348:6, 354:7, 364:16, 367:8 Post [1] - 129:16 post [6] - 258:19, 258:22, 258:24, 259:9, 261:24, 376:14 posted [4] - 258:3, 258:25, 259:6, 317:9 posting [1] - 327:12 posts [1] - 316:6 pounds [1] - 87:14 Practice [1] - 1:18

South Shore Court Reporting (631) 235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 415 of 425 PageID #: 4582

prearranged [1] 372:24
precision [2] 179:19, 179:21
prefer [3] - 53:12, 331:25, 333:14
preference [1] 53:23
preferences [2] 53:16, 369:9
preferred [3] 163:25, 164:2, 164:4
prefers [2] - 53:2, 53:3
prelude [1] - 225:10 premium [1] - 278:22 premiums [4] 227:3, 233:16, 243:20, 278:5 preparation [5] 24:21, 25:13, 26:16, 28:21, 28:25 prepare [5] - 25:2, 152:3, 152:20, 164:19, 195:7 prepared [4] - 23:20, 23:23, 114:25, 151:23 preparing [2] 152:15, 198:23 Prescott [1] - 152:13 prescribed [3] - 7:7, 7:8, 98:14 prescription [7] 13:16, 13:18, 18:22, 19:10, 19:20, 19:25, 97:4 prescriptions [1] 18:25 preseason [1] - 67:7 presence [1] 193:10 PRESENT [1] - 2:20 present [2] - 83:20, 187:2 press [1] - 211:16 pressed [1] - 213:7 pressured [1] 289:6 presume [1] - 97:10 pretty [36] - 31:12, 41:11, 44:23, 45:2, 51:14, 65:17, 85:24, 108:14, 108:16, 109:23, 128:8, 144:5, 155:5, 160:3, 188:12, 193:2, 194:11, 196:6, 202:18, 210:3, 210:21, 229:15, 244:15, 248:21, 271:2, 297:17,

300:16, 318:7, 322:10, 322:21, 328:18, 350:22, 360:10, 368:13, 371:2, 374:3
preventing [1] 104:18
previous [8] - 82:22, 107:17, 145:22, 164:23, 165:14, 166:22, 195:22, 250:23
previously [1] 367:15
price [3] - 40:8, 42:9, 217:20
primarily [2] 133:24, 247:2
primary [8] - 65:7, 116:11, 140:16, 141:6, 152:11, 245:4, 282:19
printouts [1] 128:23
priority [2] - 140:19, 141:21
privacy [2] - 259:13, 259:15
private [3] - 24:15, 35:21, 129:23
privilege [4] - 10:14, 11:16, 90:23, 95:10
privileged [1] - 10:20 privy [1] - 137:14 probable [5] 232:19, 232:20, 233:22, 278:15 problem [12] - 82:17, 82:19, 83:9, 101:6, 101:8, 101:23, 102:8, 102:15, 116:20, 207:19, 226:7, 269:19 problems [9] - 10:14, 100:19, 101:15, 101:18, 101:20, 101:25, 102:11, 102:22, 162:14 procedure [1] 22:16 Procedure [6] - 7:21, 13:23, 124:4, 124:9, 124:16, 125:6 procedures [3] 30:25, 101:10, 245:3 proceed [3] - 167:9, 167:13, 167:15 proceeded [2] 37:17, 131:25 process [7] - 98:13, 107:5, 127:3, 175:21,

229:15, 229:16, 304:25
processes [1] 172:5
prod [1] - 60:24 production [1] 159:17 Professional [1] 1:21 professional [4] 119:4, 119:5, 303:15, 324:2 professionally [2] 376:12, 385:2 professionals [1] 148:5 profile [2] - 375:8, 377:17 profit [2] - 248:20, 249:12 profitable [2] 248:22, 248:24 profits [1] - 248:17 Program [2] - 314:5, 314:6 program [3] 102:12, 304:2, 314:4 programs [1] 186:11 promised [1] 234:21 prompt [1] - 23:10 proof [2] - 205:12, 274:18 prop [1] - 376:6 propensity [5] 265:18, 265:21, 266:8, 269:16, 273:9 prospect [1] - 61:13 protect [2] - 123:11, 126:12 protected [2] 363:20, 363:22 protection [1] 126:7 protective [1] - 15:2 prove [1] - 283:17 provide [7] - 6:6, 7:19, 14:7, 34:13, 39:10, 46:4, 59:21 provided [7] - 14:7, 18:21, 36:21, 303:6, 325:11, 338:7, 345:5 providing [3] - 5:16, 5:20, 6:11 prudent [1] - 8:25 prying [1] - 247:13 Public [4] - 1:22, 4:4, 388:25, 390:3 public [1] - 375:21

publicize [1] 327:21
pull [1] - 324:16 pull-ups [1] - 324:16 pulled [1] - 45:4 pulling [1] - 104:4 purchases [1] 249:19 pure [1] - 200:16 purpose [6] - 112:10, 219:10, 305:24, 306:12, 339:21, 339:23 purposes [2] 247:12, 386:2 pursuant [4] - 1:17, 9:17, 124:2, 124:15 pursuing [1] - 153:3 pushed [1] - 259:16 pushing [1] - 371:12 pushups [1] - 324:15 put [29] - 22:10, 46:7, 52:4, 67:12, 83:8, 86:12, 96:8, 120:25, 125:24, 163:6, 166:23, 168:13, 174:13, 174:15, 203:9, 259:21, 261:23, 289:7, 306:9, 340:22, 342:16, 342:18, 347:17, 348:2, 377:18, 381:8, 384:20, 385:12 puts [3] - 62:6, 259:20, 378:4 putting [3] - 174:24, 175:6, 352:3
Q
qualifications [1] 60:17
qualified [5] - 31:20, 31:23, 32:2, 32:3, 32:7
qualifier [1] - 335:21 qualify [1] - 337:24 qualifying [1] 335:18 quarters [1] - 127:9 quell [1] - 228:20 questioning [5] 127:22, 157:3, 165:12, 221:3, 386:2 questions [45] 5:14, 5:17, 9:2, 9:5, 10:8, 10:9, 10:15, 10:16, 11:14, 12:22, 13:15, 14:14, 15:5,

South Shore Court Reporting (631) 235-6218

23
15:7, 15:9, 17:15, 22:19, 22:22, 36:11, 36:13, 36:15, 36:17, 37:25, 38:7, 39:5, 39:18, 93:13, 95:21, 96:15, 96:17, 167:21, 190:11, 204:14, 221:7, 223:22, 223:25, 225:6, 235:7, 267:22, 268:9, 296:2, 343:6, 361:2, 362:5, 386:3
quick [1] - 385:16 quicker [1] - 318:10 quickly [2] - 90:5, 152:18 quiet [1] - 65:17 quirky [3] - 328:25, 329:2, 329:6 quite [10] - 21:21, 46:18, 66:5, 107:7, 169:8, 171:12, 190:8, 198:3, 198:4, 264:6 quotations [1] 211:11 quote [3] - 83:15, 84:11, 214:3
R
rain [2] - 287:22, 320:5
rained [1] - 108:14 raining [2] - 288:3, 288:4 rainy [7] - 287:11, 287:14, 287:17, 287:24, 293:7, 319:12, 354:6 raise [1] - 289:12 ramifications [1] 6:14 ran [1] - 89:20 Ranch [1] - 149:22 range [4] - 76:15, 87:2, 187:15, 317:19 rapport [1] - 239:10 rash [1] - 113:11 rate [1] - 81:21 rather [3] - 11:20, 133:2, 172:5 rational [1] - 226:4 RAY [1] - 1:8 ray [4] - 139:18, 157:10, 241:20, 320:24 Ray [169] - 5:6, 35:24, 38:24, 39:5, 40:23, 41:20, 42:7,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 416 of 425 PageID #: 4583

42:17, 43:14, 43:24, 44:4, 44:8, 55:21, 56:19, 57:11, 58:5, 59:6, 59:24, 60:13, 60:19, 60:25, 61:12, 61:14, 61:23, 62:2, 62:8, 65:3, 67:3, 76:24, 77:6, 77:17, 78:9, 100:23, 101:5, 101:7, 101:23, 107:14, 107:20, 107:21, 107:23, 109:13, 112:23, 113:2, 113:5, 113:10, 114:25, 116:5, 132:9, 133:22, 134:9, 135:20, 136:14, 136:22, 137:3, 137:15, 137:17, 139:16, 139:17, 155:12, 155:18, 156:9, 156:10, 156:20, 156:21, 156:24, 157:5, 157:9, 168:22, 169:4, 169:15, 169:23, 170:2, 170:9, 192:23, 193:6, 193:8, 193:12, 193:21, 199:5, 200:8, 200:13, 200:18, 200:25, 202:5, 207:7, 207:17, 208:2, 208:8, 208:9, 208:17, 210:21, 211:14, 212:8, 213:13, 215:4, 215:7, 215:8, 215:12, 216:3, 217:15, 223:15, 223:19, 224:10, 225:17, 225:19, 226:13, 226:18, 226:20, 226:23, 233:12, 235:8, 241:17, 241:18, 242:2, 242:5, 242:24, 243:5, 244:2, 244:10, 252:20, 253:4, 253:5, 253:7, 254:9, 254:10, 254:21, 254:22, 255:3, 255:8, 255:13, 256:25, 264:21, 266:16, 269:24, 270:2, 270:10, 270:11, 274:19, 277:5, 279:21, 282:4, 282:5, 283:23, 283:25, 284:6, 288:25, 290:25, 309:19, 320:19, 325:12, 335:10, 344:9, 345:24, 347:6,

359:3, 360:19, 362:10, 362:13, 367:8, 372:2, 372:13
Ray's [20] - 55:23, 57:6, 58:2, 110:4, 110:19, 128:23, 169:2, 213:13, 213:25, 229:22, 230:8, 243:6, 255:11, 269:23, 270:3, 270:10, 276:25, 279:19, 279:25, 320:18
re [1] - 205:21 re-ask [1] - 205:21 reach [2] - 16:14, 16:16 react [1] - 201:19 reacted [1] - 201:19 reacting [2] - 225:15, 225:16 read [7] - 18:14, 18:17, 20:9, 80:22, 336:21, 336:23, 388:9 readily [1] - 221:5 reading [4] - 20:5, 254:2, 334:11, 384:23 ready [5] - 76:8, 195:8, 195:19, 224:7, 353:16 real [6] - 41:18, 55:6, 84:7, 131:17, 176:23 reality [1] - 185:24 realize [2] - 74:19, 109:7 really [45] - 30:21, 31:16, 33:20, 43:13, 44:21, 45:3, 45:15, 54:24, 58:6, 59:12, 84:25, 86:21, 86:25, 89:3, 102:9, 110:10, 122:16, 128:22, 130:13, 148:22, 152:19, 169:23, 177:9, 179:4, 188:23, 198:7, 217:21, 217:23, 224:25, 225:8, 231:8, 273:14, 273:20, 284:9, 290:20, 293:21, 295:25, 304:9, 304:11, 306:17, 322:13, 324:9, 331:9, 358:6, 367:18 realm [1] - 117:14 rearrange [1] - 287:6 reason [56] - 11:5, 15:5, 33:4, 95:16, 96:7, 97:24, 98:5, 98:10, 98:18, 110:8,

116:3, 116:12, 117:3, 171:7, 171:8, 181:8, 186:8, 186:12, 207:23, 208:8, 212:24, 216:13, 223:7, 242:13, 242:15, 242:18, 246:24, 247:5, 247:7, 247:8, 254:20, 265:8, 265:14, 265:15, 265:17, 265:20, 266:7, 266:10, 269:15, 273:8, 278:20, 279:15, 279:16, 283:13, 283:15, 283:16, 283:18, 283:20, 283:22, 283:24, 284:3, 284:6, 318:14, 319:8, 358:14, 370:13
REASON [10] 391:7, 391:9, 391:11, 391:13, 391:15, 391:17, 391:19, 391:21, 391:23, 391:25
reasonable [1] - 15:8 reasons [21] - 110:2, 110:3, 110:6, 116:14, 136:8, 136:10, 136:16, 136:18, 170:23, 170:24, 172:8, 172:12, 227:5, 242:19, 242:21, 242:23, 246:19, 246:20, 247:10, 280:4, 391:4 rebel [1] - 120:8 recalled [1] - 49:10 recalling [2] 363:17, 386:16 receive [8] - 17:23, 129:15, 310:18, 310:21, 310:24, 311:14, 313:20, 314:12 received [9] 156:25, 166:10, 223:23, 242:10, 250:4, 253:16, 256:2, 256:9, 310:14 receiving [1] 313:25 recent [1] - 109:12 recently [1] - 312:23 recess [10] - 17:4, 28:12, 68:22, 93:9, 95:7, 166:18, 235:4, 337:15, 350:13, 385:19

recognized [1] 189:21
recollection [6] 5:24, 49:2, 50:12, 362:16, 363:11, 385:14
recommend [1] 10:25
recommended [1] 307:17
reconsider [1] - 93:2 record [46] - 4:10, 6:21, 16:2, 16:18, 18:17, 22:7, 34:2, 50:18, 50:23, 72:18, 94:22, 95:16, 96:8, 109:24, 110:4, 110:5, 110:12, 123:14, 129:11, 130:20, 135:14, 150:4, 157:22, 158:4, 158:5, 166:24, 188:24, 191:9, 219:23, 227:19, 236:5, 255:14, 276:8, 277:25, 281:6, 281:13, 303:19, 303:20, 326:25, 336:23, 387:4, 387:6, 387:7, 388:12, 388:13, 390:9 recorded [3] 109:10, 109:17, 110:18 recording [4] 109:21, 110:6, 112:19, 168:25 records [11] - 11:8, 14:3, 37:2, 43:2, 43:3, 221:20, 248:14, 249:9, 249:19, 251:15, 304:9 recount [1] - 109:9 redone [1] - 329:11 reduction [1] - 245:6 refer [3] - 256:25, 257:8, 381:22 reference [2] - 41:8, 327:12 referenced [1] 181:25 referencing [1] 197:13 referred [10] - 51:6, 51:21, 77:6, 190:5, 191:17, 238:17, 238:19, 238:23, 256:18, 256:22 referring [7] - 31:4, 37:5, 51:10, 67:20,

South Shore Court Reporting (631) 235-6218

24
328:22, 366:2, 384:22 reflect [4] - 22:8,
34:15, 111:25, 221:5 reflected [1] - 194:24 reflects [1] - 249:13 refresh [3] - 110:14,
200:23, 383:9 refreshing [2] -
161:21, 162:12 refund [2] - 218:14,
218:18 refunded [1] -
218:10 refuse [3] - 94:5,
289:8, 291:5 refused [4] - 14:7,
15:10, 15:15, 201:6 refusing [5] - 94:15,
94:25, 95:18, 95:23, 96:11
regard [6] - 31:18, 240:13, 284:25, 338:9, 347:16, 359:7
regarding [5] 109:19, 133:19, 236:8, 338:11, 347:8
regards [1] - 340:22 regular [3] - 91:17, 120:7, 121:4 regularly [2] - 123:9, 123:10 regulations [1] 141:10 regurgitated [1] 329:10 rehired [7] - 58:5, 58:23, 59:2, 59:5, 59:8, 77:15, 78:18 reimbursements [1] - 250:4 relate [1] - 36:17 related [10] - 9:16, 9:19, 108:9, 213:13, 247:10, 264:13, 264:14, 338:9, 340:5, 390:12 relation [4] - 171:20, 220:7, 229:11, 340:4 relations [1] - 153:7 relationship [16] 29:20, 65:20, 72:24, 81:8, 83:18, 83:21, 85:2, 190:4, 190:20, 191:23, 192:24, 193:15, 193:19, 247:11, 247:19, 266:15 relationships [9] 53:24, 54:16, 54:20, 55:10, 81:13, 81:18,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 417 of 425 PageID #: 4584

193:24, 210:12, 257:23
relative [4] - 180:23, 180:25, 181:3
relatively [3] - 148:7, 254:24, 288:16
relaxing [1] - 149:16 relay [1] - 127:6 relayed [7] - 31:10, 31:11, 169:5, 170:3, 253:5, 254:2, 275:23 relaying [2] - 254:10, 254:22 release [5] - 337:18, 337:21, 338:2, 338:16, 339:24 released [1] - 300:2 releases [2] 211:17, 338:2 relevant [3] - 7:12, 42:17, 46:14 relief [1] - 201:21 religion [1] - 354:6 relocate [1] - 248:2 remain [9] - 124:12, 124:20, 142:16, 157:20, 158:9, 349:6, 349:12, 381:25, 385:4 remainder [2] - 75:8, 75:21 remained [1] - 100:3 remaining [1] 314:18 remains [1] - 130:20 remarks [1] - 204:24 remember [89] 17:18, 20:3, 21:9, 21:21, 21:23, 22:3, 35:16, 37:3, 37:15, 38:12, 40:19, 45:17, 46:11, 46:13, 47:16, 47:21, 47:25, 48:10, 48:15, 49:2, 50:3, 50:16, 50:20, 62:16, 65:22, 66:7, 66:11, 66:14, 66:16, 66:21, 67:23, 72:17, 72:19, 78:11, 88:21, 104:3, 110:9, 112:2, 114:19, 114:22, 115:11, 115:23, 117:9, 120:24, 125:22, 126:23, 127:18, 131:6, 131:19, 132:13, 135:15, 135:17, 144:10, 159:20, 159:21, 208:12, 208:13, 214:4, 214:5, 221:14, 234:15, 240:4,

263:16, 263:21, 270:16, 271:7, 271:10, 271:12, 272:7, 272:13, 272:15, 275:12, 275:14, 275:18, 299:9, 299:12, 349:5, 349:8, 349:11, 349:13, 350:21, 350:22, 350:24, 351:4, 351:5, 361:9, 362:19
remembered [13] 36:19, 36:23, 37:8, 37:10, 39:21, 46:20, 48:12, 62:13, 70:12, 269:3, 269:11, 269:12, 361:8
remembering [1] 271:15
reminding [1] 276:12
reminds [3] - 21:10, 21:14, 307:19
removal [1] - 245:3 repeat [4] - 58:11, 159:3, 280:7, 363:6 rephrase [1] - 205:21 report [3] - 78:5, 100:12, 224:8 reported [1] - 78:6 reporter [7] - 18:18, 23:4, 110:11, 112:6, 336:24, 349:13, 386:13 Reporter [1] - 1:21 REPORTER [1] 336:15 representations [2] 68:2, 124:10 representations.. [1] - 68:4 represents [2] - 5:2, 5:6 reprimand [2] 168:22, 200:11 reputation [2] 255:14, 277:25 request [2] - 124:18, 125:4 requested [5] 18:16, 164:21, 197:23, 336:22, 363:16 Requests [3] - 27:3, 27:12, 389:10 require [2] - 107:24, 248:8 required [11] - 22:21, 33:2, 72:3, 72:9,

72:21, 80:25, 81:10, 82:15, 174:18, 337:21, 357:12
research [1] - 112:18 reserve [1] - 385:21 reserved [1] - 3:11 reside [3] - 129:10, 130:17, 329:22 resided [1] - 131:12 residing [2] - 130:23, 196:18 resolve [2] - 205:4, 228:17 resolved [1] - 83:7 respect [2] - 52:2, 227:17 respective [1] - 3:5 respond [3] - 41:12, 221:21, 361:15 responded [2] 260:25, 384:8 responding [2] 133:19, 197:18 response [14] - 23:9, 23:11, 27:21, 41:10, 58:22, 77:23, 96:2, 133:4, 206:17, 206:19, 207:3, 296:2, 309:23, 313:10 Response [7] - 27:2, 27:8, 27:12, 27:15, 334:12, 389:10, 389:12 responses [2] 22:22, 22:25 responsibilities [1] 266:4 rest [4] - 124:13, 124:21, 229:17, 230:16 restaurant [2] 299:8 restaurants [2] 299:3, 299:6 resting [1] - 230:14 restricted [1] - 68:11 restrictions [2] 85:11, 288:5 result [6] - 88:15, 104:14, 107:25, 226:22, 280:11 resulted [1] - 379:14 resurfacing [1] 245:5 return [8] - 167:2, 188:5, 250:18, 250:20, 250:25, 251:4, 251:7, 292:11 returned [4] - 76:23, 82:19, 189:4, 310:2

reveal [1] - 212:23 revealed [2] 173:16, 173:22 review [9] - 25:12, 26:16, 124:8, 125:5, 166:25, 167:5, 304:21, 304:24, 355:13 reviewed [7] - 25:14, 26:7, 26:11, 28:21, 28:25, 334:7, 355:17 reviewing [3] 17:20, 220:21, 334:23 reviews [1] - 305:3 revoked [2] - 308:20, 308:23 reword [1] - 138:8 Rich [62] - 29:8, 44:15, 44:17, 45:4, 45:9, 45:21, 46:18, 49:20, 51:4, 51:16, 51:21, 52:10, 52:17, 60:5, 65:9, 65:10, 70:2, 70:3, 70:5, 78:13, 101:9, 101:11, 101:15, 101:17, 101:20, 101:22, 101:24, 102:9, 102:18, 103:2, 104:2, 104:4, 104:5, 120:25, 122:20, 123:4, 127:20, 127:23, 148:2, 207:6, 207:13, 207:16, 208:11, 208:12, 208:14, 208:16, 241:11, 270:23, 271:6, 271:8, 274:14, 286:11, 286:13, 290:15, 291:2, 302:11, 307:3, 320:20, 329:18, 335:10 Rich's [5] - 45:24, 50:12, 102:22, 269:21, 348:10 Richmond [4] - 4:13, 129:12, 130:2, 130:20 Riddle [4] - 152:6, 152:7, 152:16, 152:23 ride [3] - 175:20, 229:14, 296:8 rides [1] - 372:24 ridiculous [4] 134:16, 169:10, 277:2, 294:6 rigger [2] - 101:9, 273:21 Rights [5] - 237:21, 237:24, 237:25, 238:3, 238:8

South Shore Court Reporting (631) 235-6218

25
ringing [2] - 22:5, 22:9
Riviera [1] - 145:8 road [2] - 130:2, 243:23 roadblocks [1] 179:23 role [8] - 140:16, 140:25, 157:20, 157:21, 158:9, 282:22, 291:3, 382:4 rolls [1] - 309:7 romance [1] - 55:7 romantic [3] - 54:20, 54:22, 54:24 Ronkonkoma [1] 300:4 room [18] - 30:19, 35:25, 36:4, 36:5, 44:9, 44:12, 44:13, 82:20, 83:2, 83:5, 83:14, 119:17, 125:24, 221:22, 225:20, 225:21, 264:15, 264:19 Rosanna [6] - 36:20, 37:9, 134:24, 139:22, 355:3, 360:21 roughly [2] - 301:23, 306:4 round [2] - 286:3, 316:3 Route [1] - 61:6 routine [9] - 37:14, 48:3, 88:16, 121:4, 151:12, 195:22, 201:9, 202:18, 229:15 routinely [2] - 64:17, 327:20 routines [1] - 86:24 row [2] - 88:23, 189:2 rude [2] - 15:22, 161:25 rule [2] - 99:22, 314:10 ruled [3] - 11:10, 17:13, 18:15 rules [4] - 141:10, 317:3, 317:4 Rules [9] - 1:18, 7:20, 8:9, 13:23, 16:3, 124:3, 124:9, 124:16, 125:5 ruling [4] - 8:15, 8:17, 10:5, 13:24 rumors [1] - 193:2 run [10] - 160:21, 182:6, 197:9, 226:3, 245:9, 269:24, 293:6,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 418 of 425 PageID #: 4585

293:13, 293:15, 319:13
run-ins [1] - 269:24 running [2] - 126:10, 368:2 runs [3] - 160:23, 222:6, 320:24 rural [1] - 182:7 rush [1] - 264:18
S
S-A-L [1] - 114:12 sad [1] - 383:15 safe [6] - 56:7, 75:6, 143:18, 163:16, 183:23, 305:21 safely [3] - 140:17, 140:20, 305:10 safety [1] - 269:6 sal [1] - 114:12 Sal [3] - 114:13, 115:4, 131:5 sale [1] - 325:12 same-sex [1] - 53:24 San [1] - 145:5 sandwich [1] 321:21 sat [3] - 44:6, 44:8, 214:20 satisfied [10] - 69:24, 216:13, 216:18, 216:19, 216:21, 216:23, 216:24, 216:25, 217:4, 217:12 Saturday [1] - 366:23 Saul [5] - 4:19, 12:12, 13:9, 17:9, 95:5 SAUL [1] - 2:10 save [1] - 34:3 saved [1] - 224:4 saw [11] - 45:4, 79:20, 117:5, 117:23, 120:20, 123:12, 259:25, 263:5, 346:7, 369:20, 373:15 Sayville [4] - 296:8, 296:10, 298:23, 298:25 scenario [1] - 62:21 scenarios [1] 295:23 schedule [11] 130:14, 291:10, 291:12, 291:13, 291:18, 295:5, 296:15, 296:18, 296:19, 296:21,

302:16 scheduled [1] -
184:5 scheduling [1] -
281:9 school [18] - 88:5,
99:15, 148:22, 151:23, 152:3, 152:4, 152:9, 153:24, 154:3, 154:6, 154:16, 154:24, 155:3, 161:6, 197:3, 251:16, 314:8, 314:13
Science [2] - 153:4, 245:18
scold [1] - 90:7 Scottish [3] - 353:21, 354:2, 354:4 scratch [1] - 203:8 screen [4] - 49:19, 374:15, 375:2, 389:15 scrutiny [1] - 308:15 sealing [1] - 3:6 seamlessly [1] 152:21 Sean [1] - 83:5 season [17] - 61:5, 61:6, 67:3, 72:23, 72:25, 75:22, 81:3, 81:10, 127:13, 132:12, 210:7, 224:16, 286:11, 286:17, 286:20, 312:13, 316:7 seasonal [8] - 81:22, 286:4, 286:5, 286:7, 286:24, 287:2, 316:9, 316:13 seat [1] - 205:6 seatbelt [1] - 380:13 seating [6] - 109:9, 127:4, 128:5, 244:14, 271:11, 347:11 seating.. [1] - 223:17 Second [1] - 11:10 second [10] - 13:3, 44:18, 131:24, 141:21, 151:13, 176:8, 187:6, 229:21, 256:16, 378:10 secondary [2] 116:13, 140:25 seconds [9] - 41:16, 305:8, 306:14, 306:15, 306:18, 306:19, 307:2, 307:4, 307:7 SECRETARY [4] 12:9, 12:13, 12:20, 13:2

see [65] - 26:13, 26:15, 32:24, 33:12, 33:20, 42:14, 43:4, 43:5, 43:9, 44:17, 49:18, 87:10, 90:4, 99:24, 105:3, 112:16, 118:18, 126:17, 136:17, 153:16, 154:13, 157:7, 168:24, 178:3, 178:19, 187:21, 200:24, 200:25, 201:3, 201:8, 210:2, 220:10, 221:6, 230:19, 231:24, 249:11, 249:19, 258:15, 260:6, 264:19, 275:17, 277:11, 291:18, 311:9, 315:2, 321:15, 334:23, 335:24, 347:21, 348:7, 351:9, 351:17, 352:3, 358:4, 363:16, 364:24, 365:11, 365:15, 367:25, 381:11, 381:23, 382:6, 382:10, 385:17
seeing [1] - 230:18 seek [1] - 148:18 seeking [2] - 153:6, 219:7 sees [1] - 375:21 self [2] - 94:2, 95:12 self-incrimination [2] - 94:2, 95:12 sell [1] - 316:3 semester [2] 165:14, 165:15 send [1] - 17:24 sending [2] - 62:5, 224:2 senior [4] - 32:2, 340:24, 341:8, 341:14 seniority [1] - 341:10 sense [7] - 121:15, 172:6, 173:11, 175:5, 218:8, 306:21, 358:12 sensed [8] - 140:2, 142:2, 173:7, 173:13, 174:19, 174:22, 175:8, 229:5 sent [4] - 11:7, 211:12, 212:25, 263:2 separate [2] - 175:3, 329:25 separated [1] 191:15 separation [2] 33:18, 288:13

September [18] 57:2, 57:18, 57:22, 58:14, 131:16, 131:17, 132:19, 132:23, 133:2, 133:7, 142:19, 143:19, 143:22, 190:6, 190:7, 194:13, 194:16, 285:16
serious [1] - 40:18 serve [1] - 306:12 service [1] - 109:17 Services [2] - 310:7, 310:10 session [1] - 25:10 set [8] - 26:4, 61:22, 109:2, 130:14, 177:22, 384:25, 390:6, 390:16 setting [9] - 91:25, 99:25, 236:20, 236:22, 237:14, 237:17, 264:22, 370:9, 372:11 settings [4] - 46:24, 365:12, 365:16, 365:19 seven [12] - 27:18, 107:14, 145:8, 150:23, 276:18, 287:4, 295:10, 295:11, 295:13, 295:17, 306:16, 307:2 seven-day [1] 145:8 seven-day-a-week [2] - 295:10, 295:11 seventeen [2] 129:17, 130:7 several [13] - 11:23, 36:25, 37:12, 110:2, 113:11, 149:14, 180:11, 182:10, 202:16, 263:19, 296:10, 371:23 sex [10] - 52:25, 53:6, 53:24, 54:17, 116:18, 261:17, 261:21, 263:25, 354:20 sexual [18] - 38:9, 40:2, 40:20, 53:16, 78:9, 137:23, 173:16, 173:23, 177:13, 227:13, 228:3, 241:24, 254:5, 257:23, 258:10, 264:6, 335:4, 354:19 sexuality [30] - 47:6, 52:11, 52:15, 54:4,

South Shore Court Reporting (631) 235-6218

26
62:9, 62:11, 62:17, 63:2, 63:13, 78:19, 79:4, 139:19, 139:23, 139:25, 140:5, 142:2, 175:14, 176:2, 176:7, 176:16, 236:18, 238:13, 239:18, 239:25, 242:24, 243:13, 344:2, 344:10, 347:9, 360:15
sexually [3] - 52:24, 228:4, 257:20
shack [1] - 325:13 shaking [4] - 50:18, 51:3, 51:9, 51:15 shall [1] - 3:11 shape [3] - 89:10, 90:16, 368:11 share [5] - 104:2, 148:6, 244:18, 248:18, 296:4 shared [4] - 104:6, 104:7, 104:9, 186:21 sharing [3] - 227:8, 227:13, 356:7 Shaw [6] - 60:7, 65:7, 70:11, 269:14, 274:9, 290:17 Shaw's [2] - 269:15, 269:20 SHEET [1] - 391:2 sheet [1] - 249:13 shifts [1] - 144:16 shining [2] - 126:2, 126:11 ship [8] - 144:24, 145:13, 145:14, 145:20, 163:9, 163:13, 164:25, 165:2 shirt [2] - 127:16, 353:2 shirtless [2] - 368:2, 370:19 shit [2] - 213:4, 213:6 shocked [1] - 40:14 shook [1] - 186:23 shooken [2] - 360:4, 360:6 shoot [2] - 306:7, 377:4 shooter [1] - 273:10 short [11] - 9:24, 17:3, 54:23, 163:24, 182:22, 187:19, 197:24, 210:4, 248:21, 330:12, 330:13 shortened [1] 187:18

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 419 of 425 PageID #: 4586

shorter [2] - 215:13, 301:15
shortly [4] - 56:9, 56:13, 191:11, 193:22
shot [2] - 377:20, 377:23
shots [3] - 374:15, 375:2, 389:15
shoulder [5] 229:17, 230:14, 230:17, 231:13
shout [1] - 231:2 shouted [2] - 41:5, 42:5 shouting [2] 224:10, 234:12 show [5] - 106:4, 147:14, 192:19, 291:15, 374:19 showed [1] - 321:10 shower [2] - 324:20, 325:9 showing [2] 118:15, 377:7 shown [3] - 377:9, 377:13, 377:15 shrugged [1] 117:15 shutting [1] - 386:5 side [13] - 19:19, 19:24, 20:6, 20:9, 20:13, 20:19, 50:19, 51:9, 105:25, 134:5, 134:7 sign [5] - 153:10, 163:13, 163:15, 168:21, 307:11 signed [7] - 3:14, 3:17, 163:9, 167:3, 200:11, 337:20, 386:17 Signed [1] - 388:20 significant [1] 190:21 signify [1] - 23:3 signing [1] - 337:17 silent [11] - 124:12, 124:20, 142:17, 157:20, 158:9, 246:14, 311:10, 349:6, 349:12, 381:25, 385:4 silly [1] - 203:20 similar [3] - 166:3, 269:19, 329:9 simple [5] - 255:11, 277:4, 278:2, 333:25 simply [6] - 197:4, 251:16, 321:25, 352:7, 358:17, 371:6

simultaneously [1] 197:25
single [4] - 141:17, 141:18, 327:23, 374:25
sister [3] - 21:8, 21:14, 350:17
sisters [2] - 114:6, 115:4
sit [10] - 20:23, 36:2, 85:12, 175:18, 271:13, 279:3, 280:9, 283:12, 324:15, 383:21
sit-ups [1] - 324:15 site [3] - 258:4, 292:10, 350:25 sitting [14] - 20:12, 20:18, 25:10, 26:19, 30:7, 44:5, 90:17, 128:2, 203:15, 206:5, 231:24, 283:23, 347:14, 383:18 situation [33] 34:20, 41:7, 55:3, 74:9, 134:20, 155:11, 155:13, 171:7, 182:8, 182:15, 182:16, 198:16, 203:9, 203:13, 205:5, 205:8, 205:13, 228:17, 228:20, 228:21, 228:25, 234:14, 236:13, 251:14, 255:15, 256:24, 270:9, 279:22, 282:3, 283:11, 296:25, 321:16, 372:17 situations [5] 72:20, 113:25, 114:2, 205:3, 256:21 six [9] - 27:18, 75:2, 76:20, 76:21, 88:17, 89:2, 182:25, 224:6, 298:3 size [2] - 145:13, 247:24 skies [1] - 293:7 Skin [3] - 244:22, 244:23, 246:9 skin [2] - 245:5, 368:17 sky [2] - 288:9, 366:25 skydive [2] - 337:22, 374:4 Skydive [97] - 29:18, 31:22, 55:17, 55:18, 55:20, 55:25, 56:2, 56:8, 56:15, 56:17,

59:2, 60:3, 60:9, 61:10, 62:25, 69:4, 69:9, 73:6, 75:11, 75:17, 77:15, 78:3, 78:8, 80:4, 81:22, 85:17, 85:20, 100:9, 100:15, 102:12, 107:8, 115:5, 125:20, 128:10, 128:15, 129:8, 133:22, 134:2, 134:13, 142:20, 142:24, 202:2, 207:21, 208:20, 209:5, 211:8, 212:8, 212:21, 213:17, 226:20, 239:24, 241:13, 261:6, 262:24, 263:18, 263:25, 266:2, 266:13, 273:17, 273:25, 274:5, 274:10, 274:15, 274:20, 285:12, 287:10, 288:17, 292:22, 294:9, 294:24, 295:5, 302:19, 312:13, 312:17, 313:3, 315:19, 316:12, 316:15, 317:16, 326:16, 327:13, 329:2, 329:13, 331:20, 335:6, 336:2, 337:8, 337:19, 338:2, 338:24, 339:11, 339:24, 340:24, 348:19, 354:2, 365:15, 366:20
SKYDIVE [1] - 1:8 skydivers [8] 38:17, 146:14, 326:14, 340:18, 342:6, 342:12, 369:23, 370:4 Skydivers [1] - 342:7 Skydiving [9] 55:21, 132:10, 142:22, 146:12, 210:23, 213:25, 214:19, 214:22, 301:6 skydiving [17] 65:19, 129:22, 209:20, 210:18, 213:19, 215:11, 252:13, 252:15, 286:24, 287:3, 305:2, 316:8, 329:20, 337:22, 338:17, 352:17, 373:25 slang [1] - 375:22

sleep [4] - 129:19, 130:3, 146:17, 292:2
sleeping [1] - 197:12 sleeveless [1] 127:15 sliding [1] - 175:21 slight [1] - 282:2 slightly [1] - 302:15 slim [2] - 155:5, 332:22 slipped [1] - 352:11 slobbering [1] 332:5 sloppy [1] - 179:22 slow [1] - 305:24 slowly [1] - 301:14 small [4] - 146:22, 148:8, 370:3, 370:5 smaller [1] - 87:5 smells [1] - 92:2 smile [1] - 239:21 smiled [1] - 217:2 smiling [3] - 181:6, 181:8, 378:22 Smith [6] - 134:4, 134:12, 143:3, 212:11, 213:8, 214:14 smoke [1] - 91:13 smoked [6] - 91:15, 91:16, 91:17, 91:20, 91:24, 92:4 smooth [1] - 91:11 snide [2] - 15:21, 16:5 snow [1] - 182:7 snowed [1] - 182:9 so-and-so [1] 361:20 so.. [3] - 178:12, 192:20, 253:3 social [17] - 46:24, 91:25, 99:25, 163:23, 163:25, 164:2, 164:5, 164:6, 236:20, 240:22, 323:25, 351:13, 365:12, 365:16, 365:18, 370:7, 370:9 Social [2] - 310:6, 310:10 socialization [1] 370:12 socialize [8] - 61:25, 298:19, 298:21, 323:23, 324:3, 324:10, 351:12, 351:15 socialized [1] 298:14 socially [1] - 365:25

South Shore Court Reporting (631) 235-6218

27
society [1] - 148:8 sock [2] - 347:17, 348:3 sofa [1] - 90:17 soft [1] - 325:13 softball [7] - 117:6, 117:8, 117:17, 117:19, 117:22, 117:24, 118:18 software [1] - 304:2 solid [1] - 99:15 solo [1] - 306:5 solstice [1] - 301:5 someone [12] - 29:9, 52:15, 53:6, 85:13, 87:10, 199:5, 341:14, 354:15, 354:18, 364:19, 364:25, 365:6 something-or-other [1] - 329:16 sometimes [33] 23:2, 33:17, 55:6, 120:11, 121:13, 121:23, 121:25, 122:12, 122:14, 141:20, 145:5, 163:11, 163:12, 192:3, 250:16, 259:15, 290:24, 291:2, 291:23, 291:25, 292:13, 302:9, 319:6, 319:9, 320:8, 328:17, 342:13, 342:14, 350:8, 364:12, 366:22 somewhat [1] 138:3 somewhere [14] 72:19, 129:5, 144:2, 144:9, 144:19, 163:5, 183:21, 249:14, 249:17, 257:11, 298:4, 317:25, 318:4, 354:12 son [2] - 106:2, 106:4 soon [8] - 17:23, 41:20, 73:22, 89:24, 90:3, 148:19, 210:21, 220:24 sorry [6] - 22:12, 50:11, 56:4, 157:15, 220:11, 381:3 sort [8] - 50:4, 83:3, 110:14, 189:24, 203:10, 205:4, 217:22, 370:17 sought [2] - 132:8, 207:23 sound [3] - 106:20,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 420 of 425 PageID #: 4587

139:3, 239:14 sounded [5] - 45:11,
45:14, 60:21, 193:2, 216:25
sounds [15] - 16:9, 42:20, 69:17, 93:8, 143:14, 166:16, 172:10, 176:9, 177:16, 216:12, 235:21, 260:10, 319:18, 327:23, 358:25
source [2] - 200:15, 213:9
sources [3] - 212:22, 213:10, 213:11
spa [3] - 244:24, 244:25, 368:15
space [1] - 34:3 Spadero [1] - 66:4 spastic [2] - 117:22, 118:5 speaking [13] - 7:24, 13:20, 113:12, 119:16, 119:19, 124:5, 124:6, 219:3, 260:12, 279:13, 284:18, 287:3, 317:6 special [2] - 80:15, 329:23 specialty [3] - 153:6, 238:7, 329:21 specific [47] - 20:22, 25:9, 25:10, 33:8, 37:4, 37:16, 47:16, 47:25, 48:13, 48:14, 52:12, 59:10, 61:22, 67:16, 67:19, 67:24, 69:7, 69:10, 73:14, 73:25, 79:14, 86:22, 101:2, 103:3, 103:7, 123:7, 125:16, 125:22, 126:16, 136:23, 138:4, 148:13, 159:19, 171:19, 172:22, 187:14, 236:15, 244:20, 258:15, 267:24, 283:5, 287:19, 291:16, 294:12, 297:11, 314:14, 360:20 specifically [25] 35:6, 62:15, 67:14, 85:23, 101:13, 102:8, 104:3, 117:9, 120:23, 123:6, 127:23, 128:3, 147:10, 162:20, 199:23, 207:14, 207:22, 244:14,

253:9, 271:15, 309:11, 315:9, 315:11, 315:25, 360:17
specificity [1] 115:20
specifics [8] - 45:17, 63:18, 119:22, 119:23, 240:4, 240:19, 293:12, 362:19
specified [1] 343:21
spectacle [1] - 372:7 speculate [1] 203:23 speculation [1] 63:25 speed [1] - 306:4 speeding [1] 380:13 speeds [2] - 304:8, 317:22 spelled [2] - 327:16, 327:19 spelling [1] - 327:4 spend [9] - 194:8, 295:15, 295:18, 295:23, 296:12, 296:13, 296:22, 296:23, 351:18 spending [1] - 249:3 spent [2] - 194:5, 252:9 SPF [1] - 368:18 spiral [1] - 303:13 spirited [1] - 76:8 spiritual [1] - 373:25 splendid [1] - 375:13 splint [2] - 73:24, 74:5 splinted [2] - 74:6, 74:13 split [1] - 355:24 spoken [3] - 60:7, 115:16, 380:16 sport [3] - 277:23, 316:9, 316:13 sports [2] - 119:6, 186:9 spot [4] - 52:5, 82:22, 84:21, 150:9 sprained [1] - 74:12 spread [1] - 264:21 squats [1] - 88:15 squirrel [2] - 375:19, 376:25 ss [1] - 388:5 stability [2] - 305:9, 305:20

staff [35] - 38:15, 41:2, 41:3, 41:4, 41:9, 42:5, 42:6, 62:7, 82:20, 83:5, 100:23, 101:3, 206:14, 222:22, 264:15, 290:23, 325:19, 328:18, 344:22, 345:3, 345:8, 345:9, 345:10, 345:14, 345:15, 345:20, 345:23, 352:25, 353:2, 353:9, 353:10, 360:6, 371:24, 372:3
stall [1] - 324:24 stand [1] - 290:23 standard [3] 303:10, 337:20, 338:15 standing [3] 222:23, 311:11, 322:18 staple [1] - 318:25 stars [1] - 188:11 start [17] - 55:16, 55:24, 59:14, 69:14, 69:22, 78:2, 83:17, 84:25, 152:20, 152:22, 153:12, 158:23, 160:24, 161:3, 247:6, 271:3, 332:18 started [22] - 37:5, 44:21, 45:7, 56:8, 56:14, 74:3, 77:19, 78:7, 85:17, 107:2, 148:3, 152:19, 153:8, 158:18, 159:6, 161:5, 190:9, 197:3, 246:18, 247:4, 247:21, 247:22 starting [5] - 34:18, 178:19, 199:11, 199:19, 200:3 starts [1] - 301:14 stashed [2] - 373:6, 373:12 STATE [1] - 388:4 State [7] - 1:22, 4:5, 110:23, 243:25, 282:6, 388:25, 390:4 state [7] - 4:9, 50:23, 112:17, 270:19, 276:4, 280:22, 310:24 statement [5] 32:15, 168:22, 258:14, 316:18, 321:24 States [4] - 141:11, 266:14, 317:3, 337:23 STATES [1] - 1:2

Station [1] - 299:10 statistically [3] 119:16, 119:19, 279:13 status [2] - 190:2, 256:15 statute [1] - 288:10 statutes [1] - 112:16 stay [12] - 130:13, 142:23, 143:24, 146:6, 146:10, 164:13, 286:15, 291:19, 293:10, 351:19, 368:16, 373:9 stayed [3] - 131:15, 147:6, 150:25 staying [2] - 143:8, 197:8 stays [1] - 86:6 steal [1] - 217:18 steered [2] - 264:6, 264:9 stereotype [1] 118:22 stereotypes [1] 116:19 stereotypical [1] 118:7 steroid [1] - 370:19 steroid-like [1] 370:19 steroids [1] - 369:10 stick [2] - 99:21, 328:5 sticking [2] - 165:19, 217:23 sticks [1] - 34:7 still [28] - 65:20, 76:25, 79:6, 89:5, 90:11, 90:18, 93:11, 94:20, 106:9, 157:13, 170:5, 191:10, 219:12, 259:12, 259:17, 270:10, 275:16, 280:19, 294:22, 303:11, 309:8, 314:16, 320:9, 345:13, 345:22, 355:14, 358:6, 372:13 stink [1] - 241:6 STIPULATED [3] 3:4, 3:9, 3:13 stole [4] - 215:10, 217:15, 219:17, 309:25 stomped [2] 225:20, 225:21 stop [13] - 8:19, 83:15, 132:6, 132:16, 178:13, 181:17,

South Shore Court Reporting (631) 235-6218

28
221:12, 263:7, 293:6, 313:25, 348:22, 348:24, 384:14
stopped [4] - 132:4, 132:7, 142:20, 342:4
stories [1] - 170:10 stormed [1] - 44:4 story [3] - 134:6, 134:7, 351:11 straight [26] - 76:17, 118:18, 118:21, 118:25, 121:13, 121:19, 122:2, 122:5, 122:13, 126:13, 126:16, 126:23, 126:25, 147:21, 158:6, 206:10, 264:13, 273:10, 333:11, 356:14, 356:21, 357:6, 357:14, 359:7, 359:21 straight-shooter [1] - 273:10 strange [2] - 358:6, 358:7 stranger [1] - 239:13 strapped [5] 202:10, 228:19, 231:12, 307:15, 360:10 strapping [5] 203:12, 203:17, 205:9, 255:15, 255:18 strategic [1] - 247:3 Street [1] - 2:5 street [1] - 239:12 strength [1] - 182:21 stress [11] - 197:14, 197:18, 198:3, 198:10, 198:14, 198:15, 198:22, 199:6, 199:7, 306:10, 379:22 stricken [1] - 171:11 strictly [1] - 80:11 strike [3] - 6:23, 123:18, 124:19 strip [1] - 376:23 strongly [2] - 9:22, 10:24 struggled [1] 183:10 stuck [2] - 33:9, 33:10 student [2] - 152:14, 318:16 study [1] - 153:2 stuff [33] - 47:2, 83:8, 89:9, 119:8, 181:20, 182:4,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 421 of 425 PageID #: 4588

185:12, 197:23, 201:12, 206:25, 217:25, 224:4, 224:11, 233:4, 240:6, 260:5, 271:22, 293:20, 293:21, 312:6, 312:8, 319:23, 320:2, 320:4, 328:9, 328:13, 331:16, 343:24, 373:4, 373:12, 375:7, 382:21, 383:2
stunned [1] - 44:6 stupid [1] - 332:19 style [1] - 368:22 subject [6] - 6:7, 40:2, 47:6, 91:4, 376:19, 377:5 submitted [2] 25:15, 371:25 subscribed [1] 388:20 successful [1] 379:5 sucks [2] - 185:8, 217:21 sued [2] - 340:19, 340:20 suffer [1] - 90:18 suffered [2] - 88:14, 103:6 suggest [2] - 9:22, 16:12 suing [1] - 211:8 suit [2] - 375:19, 376:25 Suite [1] - 2:5 summer [12] - 56:3, 56:5, 56:6, 56:14, 56:22, 60:10, 86:8, 185:18, 196:25, 301:5, 301:9, 301:11 summers [1] 188:24 summertime [1] 327:14 sun [6] - 120:12, 126:2, 126:5, 126:7, 126:11, 368:17 Sunday [2] - 149:14, 366:23 sunlight [1] - 301:16 Sunrise [2] - 1:13, 2:8 sunset [8] - 143:7, 301:8, 316:25, 317:8, 317:9, 373:24, 374:5 sunsets [1] - 374:2 superimpose [1] 172:4

supervisor [4] 29:15, 29:17, 100:19, 168:19
supervisory [1] 335:11
Supplemental [3] 27:2, 27:11, 389:10
supplemented [1] 134:15
supportive [3] 107:10, 107:19, 107:20
suppose [9] - 86:12, 97:16, 160:4, 204:10, 262:25, 279:14, 292:9, 353:6, 367:9
supposed [13] 88:24, 89:3, 100:12, 100:16, 100:20, 131:20, 225:24, 233:10, 305:6, 317:5, 317:6, 329:17, 353:6
surgeon [3] - 77:7, 77:8, 77:13
surgery [4] - 76:21, 77:10, 89:20, 89:21
surmise [1] - 353:10 surprise [2] - 31:13, 224:14 surprised [7] 41:12, 90:4, 160:7, 160:8, 160:10, 243:4, 287:8 surprises [1] 122:11 surreptitiously [2] 111:7, 111:8 suspended [17] 35:9, 114:23, 115:5, 115:16, 115:25, 116:10, 134:10, 137:20, 139:18, 200:8, 200:25, 201:4, 207:17, 225:9, 225:20, 253:7, 314:5 suspension [7] 36:7, 36:9, 41:15, 113:10, 155:16, 208:22, 222:14 swear [1] - 6:3 swearing [1] - 5:19 swore [3] - 316:17, 334:14, 342:23 sworn [6] - 3:15, 3:17, 4:3, 94:21, 167:3, 390:6 syllabus [1] - 166:7 sympathetic [1] 107:11 system [4] - 102:17,

313:10, 313:11, 313:14
systems [3] - 159:12, 159:22, 159:24
T
table [2] - 27:25, 85:12
tag [1] - 259:10 tail [1] - 305:15 takeoff [1] - 317:7 tall [1] - 196:7 tan [2] - 368:8, 368:14 tandem [22] - 32:22, 40:8, 135:23, 155:24, 156:12, 174:18, 202:3, 202:7, 203:11, 217:20, 218:3, 218:4, 233:5, 255:17, 302:14, 304:10, 305:5, 306:3, 309:7, 318:17, 318:20 tandems [7] - 42:9, 195:14, 255:12, 287:9, 291:18, 309:10, 318:24 tangent [2] - 208:10, 225:4 tangible [1] - 168:24 tanning [1] - 368:3 tape [3] - 110:17, 113:3, 113:6 taped [6] - 108:22, 109:3, 111:7, 111:21, 111:24, 113:9 tapes [1] - 34:4 taping [4] - 108:18, 111:5, 111:13, 113:5 tapped [1] - 112:23 tax [5] - 250:18, 250:20, 250:24, 251:3, 251:6 tea [2] - 234:20, 234:24 teams [1] - 119:8 teased [1] - 119:20 technical [1] - 153:5 technically [7] 191:21, 238:24, 273:22, 287:3, 307:18, 308:5, 317:5 telephone [2] 109:24, 110:18 temporary [2] - 87:6, 87:15 ten [17] - 14:17, 16:11, 27:19, 37:2,

63:5, 87:14, 119:17, 154:14, 216:14, 277:24, 297:25, 298:3, 317:24, 318:3, 318:12, 318:14, 347:2
ten-minute [2] 14:17, 318:12
tend [5] - 167:9, 167:12, 167:14, 329:9, 332:16
tense [1] - 115:22 term [31] - 54:3, 56:10, 96:18, 96:20, 96:23, 149:12, 153:24, 154:18, 154:19, 160:18, 160:20, 160:21, 161:2, 161:3, 161:11, 161:12, 164:18, 166:4, 177:25, 178:4, 178:5, 178:7, 178:8, 180:23, 180:25, 181:4, 182:25, 189:22, 246:2, 246:4, 376:25 terminal [4] - 164:25, 305:25, 306:18, 306:24 terminate [1] - 207:7 terminated [23] 57:4, 57:9, 57:17, 57:22, 57:24, 134:13, 155:14, 172:7, 172:8, 193:22, 210:19, 210:22, 218:21, 218:24, 227:2, 227:4, 235:8, 275:15, 278:21, 279:4, 279:11, 283:24, 354:17 terminating [5] 133:4, 171:17, 171:20, 171:23, 219:4 termination [12] 58:16, 113:8, 155:16, 171:9, 222:14, 223:3, 275:16, 275:20, 280:10, 281:15, 283:8, 379:15 terms [3] - 152:18, 160:24, 164:16 terribly [1] - 330:13 test [1] - 340:22 testified [20] - 4:6, 30:10, 34:9, 45:9, 80:19, 135:2, 139:8, 139:13, 142:18, 156:20, 175:25, 176:15, 177:5, 200:22, 266:18,

29
267:2, 295:25, 309:24, 355:9, 360:18
testify [7] - 7:15, 9:13, 29:23, 170:2, 266:17, 266:22, 312:15
testifying [5] - 51:4, 137:12, 235:13, 267:13, 267:16
Testimony [1] - 1:18 testimony [24] 6:11, 18:21, 45:8, 45:24, 94:21, 107:4, 135:15, 135:17, 168:7, 170:6, 170:13, 177:8, 199:17, 199:23, 201:15, 203:3, 230:17, 348:11, 355:13, 357:22, 388:9, 388:13, 390:5, 390:9 TESTIMONY [1] 389:2 Texas [6] - 49:22, 49:23, 190:7, 195:15, 197:6, 244:18 texting [1] - 380:17 THAT [3] - 390:5, 390:8, 390:14 THE [17] - 22:11, 25:17, 25:22, 25:24, 27:23, 46:9, 91:12, 166:16, 168:3, 179:7, 179:12, 230:2, 230:6, 230:11, 382:15, 383:23, 384:2 themes [1] - 329:9 themselves [3] 149:4, 287:6, 315:15 therapy [1] - 245:6 there'd [2] - 42:6, 264:18 thereafter [1] 138:12 therefore [3] - 50:6, 289:19, 359:22 therein [1] - 189:11 they've [3] - 132:15, 238:24, 259:13 thinking [10] - 58:3, 109:15, 149:2, 200:19, 223:14, 230:7, 240:21, 243:5, 353:15, 359:17 thinks [1] - 363:25 third [9] - 80:11, 132:18, 142:19, 143:19, 144:18, 150:2, 150:19, 214:13, 214:17

South Shore Court Reporting (631) 235-6218

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 422 of 425 PageID #: 4589

thirteen [2] - 27:6, 27:19
Thirteen [1] - 389:11 thirteen-page [2] 27:6, 27:19 Thirteen-page [1] 389:11 thirty [6] - 130:9, 167:2, 221:9, 317:7, 322:16, 361:13 thoughts [1] - 175:3 thousands [3] 230:24, 309:6 three [46] - 14:13, 15:7, 27:14, 27:18, 37:13, 46:12, 71:12, 87:25, 88:9, 88:23, 97:20, 97:25, 98:7, 98:14, 100:4, 131:7, 141:4, 141:22, 159:25, 160:6, 164:18, 165:15, 165:17, 166:22, 167:3, 173:23, 190:19, 221:10, 241:22, 242:4, 244:11, 253:3, 255:12, 279:18, 288:10, 297:19, 300:14, 300:15, 305:8, 306:14, 306:15, 306:22, 361:12, 380:4, 380:10, 381:7 threw [2] - 117:8, 119:21 throughout [4] 80:3, 89:2, 124:13, 124:20 throw [10] - 117:5, 117:10, 117:17, 117:19, 117:21, 117:24, 118:8, 118:14, 304:15, 305:23 throwing [3] 118:24, 217:22, 305:6 thrown [1] - 118:8 thumb [3] - 74:17, 270:3, 270:11 thunder [1] - 319:22 Thursday [1] 108:13 ticket [1] - 380:13 Tierney [1] - 83:5 tight [1] - 233:7 timeframe [2] - 88:6, 88:8 timer [1] - 273:22 timers [1] - 127:11

timewise [1] - 196:23 timing [2] - 28:11, 213:12 tired [2] - 60:20, 222:20 title [3] - 159:19, 166:4, 282:20 TO [1] - 389:2 to-do [1] - 82:23 today [16] - 5:9, 6:3, 6:10, 7:3, 16:18, 20:12, 20:18, 128:2, 167:20, 214:25, 238:5, 253:25, 259:18, 279:3, 280:10, 382:4 today's [3] - 28:22, 28:25, 386:24 toe [1] - 347:18 toenails [3] - 346:7, 347:16, 348:5 together [18] - 21:22, 114:18, 142:11, 182:14, 190:8, 190:9, 190:21, 190:22, 191:4, 191:11, 193:20, 195:4, 198:4, 246:19, 247:4, 247:18, 248:4, 251:16 tolerated [2] - 242:5, 242:9 tomorrow [2] 149:13, 149:20 took [43] - 6:2, 27:24, 34:21, 34:22, 36:11, 37:9, 38:5, 43:14, 43:16, 44:11, 53:16, 68:24, 75:7, 75:9, 75:20, 125:23, 135:23, 152:25, 158:19, 159:7, 165:4, 165:5, 165:15, 165:17, 177:23, 182:23, 183:11, 188:21, 219:20, 220:11, 220:17, 220:23, 221:8, 233:13, 244:2, 255:5, 313:9, 313:19, 319:3, 361:20, 361:22, 362:2 tool [1] - 110:16 top [8] - 66:5, 66:19, 217:24, 264:18, 288:15, 302:17, 302:21, 376:24 topics [1] - 236:7 toss [1] - 118:15 total [2] - 185:17, 298:2 touch [8] - 16:22,

172:25, 173:4, 173:5, 173:21, 175:16, 228:13, 277:18
touched [10] - 43:12, 43:20, 44:2, 134:17, 173:12, 253:14, 253:17, 253:20, 254:4, 275:24
touches [1] - 269:6 touching [17] 155:24, 157:8, 171:20, 172:17, 173:9, 175:17, 177:2, 227:7, 227:24, 228:9, 243:15, 253:12, 274:24, 275:22, 281:23, 355:10, 361:16 tough [1] - 182:3 toughy [1] - 299:23 towards [6] - 15:13, 43:23, 51:25, 71:10, 132:2, 194:15 track [2] - 303:2, 303:4 tracks [1] - 219:11 trade [1] - 376:16 Trade [2] - 56:6, 56:24 traffic [1] - 319:9 train [1] - 300:4 training [6] - 102:12, 302:14, 302:20, 314:7, 314:8 transcript [10] 16:19, 17:20, 17:23, 32:14, 166:25, 192:20, 355:16, 388:9, 388:11, 390:8 transcripts [3] 167:7, 356:7, 358:4 transformer [1] 324:23 transformers [1] 325:2 transition [1] - 56:9 transitory [2] - 54:7, 54:9 transpired [2] 16:18, 44:25 transvestite [2] 371:22, 372:6 travel [1] - 144:7 traveled [1] - 251:13 traveling [3] - 87:24, 130:12, 144:6 treacherous [1] 193:3 treated [11] - 52:10, 52:13, 52:14, 52:18,

341:7, 341:12, 341:13, 342:20, 343:3, 343:9, 343:15
treatments [1] 249:5
trial [1] - 3:12 TRIAL [1] - 1:15 trick [2] - 381:9, 381:16 tried [4] - 123:21, 339:9, 370:8, 370:11 trip [12] - 24:23, 143:14, 144:9, 144:10, 179:14, 181:10, 184:5, 184:15, 184:19, 185:16, 194:24, 293:10 trips [3] - 187:18, 190:21, 210:10 trouble [1] - 192:18 truck [2] - 132:3, 214:20 true [8] - 33:13, 194:2, 194:3, 284:3, 351:25, 388:12, 388:14, 390:8 trust [1] - 129:3 truth [4] - 6:3, 169:13, 170:6, 199:10 truthful [3] - 5:20, 6:6, 265:10 truthfully [2] - 7:15, 9:14 truthfulness [8] 170:12, 170:15, 170:16, 265:18, 265:21, 266:8, 269:16, 273:9 try [14] - 14:17, 46:11, 46:15, 89:10, 138:5, 143:13, 197:24, 207:6, 231:23, 241:2, 276:24, 295:2, 339:10, 374:8 trying [31] - 8:11, 53:7, 55:4, 60:24, 65:13, 91:11, 141:15, 182:14, 198:6, 206:17, 215:12, 219:10, 222:24, 275:13, 275:17, 332:25, 355:6, 356:21, 357:6, 357:15, 357:20, 358:15, 358:18, 359:21, 362:20, 363:7, 370:16, 371:9, 371:11, 371:16, 385:7

South Shore Court Reporting (631) 235-6218

30
Tuesday [1] - 108:10 turbulent [1] - 249:2 turn [4] - 25:17, 25:21, 264:8, 383:4 turned [5] - 180:19, 326:18, 371:4, 382:17, 383:2 turning [1] - 180:16 turnover [1] - 81:21 TV [3] - 106:4, 186:11, 309:25 twelve [7] - 27:19, 183:2, 183:4, 306:18, 307:4, 307:7, 328:15 twenty [17] - 88:4, 130:9, 147:25, 175:24, 185:11, 221:9, 229:14, 317:24, 317:25, 318:3, 318:21, 319:4, 322:16, 338:14, 340:11, 347:2, 361:13 twenty-minute [2] 229:14, 318:3 twenty-or-thirtyjumps-plus [1] 361:13 twenty-two [1] 317:25 twice [4] - 300:19, 326:9, 367:13, 373:18 two [56] - 27:14, 27:17, 40:8, 42:9, 42:10, 42:14, 66:13, 88:23, 91:19, 92:5, 97:20, 99:8, 106:20, 107:3, 108:8, 141:4, 141:24, 143:3, 147:15, 159:20, 165:6, 165:16, 165:19, 165:20, 165:21, 171:14, 174:25, 180:16, 180:18, 180:20, 181:5, 184:7, 185:16, 186:15, 187:20, 190:19, 195:22, 195:24, 211:25, 217:20, 218:5, 219:21, 253:3, 272:19, 279:17, 280:4, 290:19, 297:16, 297:18, 317:21, 317:22, 317:25, 381:7 two-day [1] - 108:8 two-month [1] 187:20 type [14] - 15:2, 107:6, 110:10, 112:6,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 423 of 425 PageID #: 4590

188:20, 271:21, 304:4, 317:12, 317:13, 327:22, 367:21, 368:6, 370:24
typical [3] - 118:17, 318:20
typically [20] - 101:7, 101:11, 144:18, 145:3, 146:10, 147:10, 147:16, 148:7, 150:5, 163:3, 258:6, 285:25, 293:9, 301:7, 304:5, 316:15, 319:16, 326:13, 329:21, 372:24
U
ultimate [1] - 56:19 umm [1] - 135:7 unable [5] - 104:14, 270:13, 270:15, 270:16, 270:19 unbelievable [3] 169:12, 169:14, 181:15 uncertain [1] 200:17 unclear [1] - 200:16 uncomfortable [28] 43:13, 140:3, 142:3, 172:18, 173:8, 173:11, 173:14, 174:20, 174:23, 175:5, 175:8, 175:13, 176:17, 176:18, 228:10, 229:5, 253:13, 253:15, 253:18, 254:4, 255:10, 331:5, 355:10, 371:12, 371:17, 372:9, 372:10, 372:15 uncommon [3] 348:11, 350:7, 351:7 under [10] - 11:9, 109:2, 137:13, 137:15, 247:6, 270:3, 270:10, 308:14, 342:23, 388:10 unemployment [9] 310:12, 310:19, 310:21, 310:25, 311:4, 311:7, 313:6, 314:13, 314:19 unethical [1] - 220:4 unexpected [1] 103:23 unfamiliar [1] 328:20

unfortunately [2] 119:6, 226:16
unhappy [3] - 57:13, 259:22, 382:18
unique [2] - 265:25, 376:6
uNITED [1] - 1:2 United [4] - 141:11, 266:14, 317:3, 337:23 University [2] 152:6, 152:8 university [3] 152:10, 183:6, 183:7 unless [8] - 46:6, 78:21, 80:21, 110:10, 268:22, 295:19, 352:16, 372:18 unlike [1] - 192:23 unqualified [1] 60:22 unreasonably [3] 167:10, 167:13, 167:15 untrue [1] - 269:9 untruth [2] - 283:7, 283:10 untruthful [1] 266:19 untruthfully [2] 267:3, 267:16 unusual [2] - 182:6, 351:9 Up [1] - 242:12 up [154] - 24:23, 38:9, 38:10, 38:13, 38:20, 38:22, 38:24, 40:3, 40:21, 40:22, 40:23, 40:25, 41:11, 46:13, 47:6, 47:14, 47:18, 47:20, 48:3, 48:5, 48:17, 50:6, 50:14, 55:20, 59:23, 60:22, 61:6, 61:23, 62:9, 62:12, 62:14, 62:18, 63:19, 64:2, 73:7, 74:11, 75:3, 77:3, 80:11, 90:15, 102:13, 106:22, 106:23, 112:5, 121:3, 121:24, 125:4, 126:9, 128:12, 128:23, 131:11, 132:12, 137:3, 139:19, 147:14, 153:10, 156:8, 163:9, 163:13, 163:15, 166:5, 166:7, 168:20, 170:3, 171:8, 171:11, 172:14, 175:20, 177:15, 178:20, 179:2,

180:16, 182:12, 184:16, 184:19, 193:24, 196:8, 196:24, 196:25, 197:24, 209:6, 210:7, 210:12, 223:16, 224:4, 224:18, 224:23, 226:8, 226:22, 227:3, 229:14, 233:16, 234:11, 235:10, 239:25, 240:17, 242:5, 242:10, 243:13, 243:16, 243:20, 247:6, 248:6, 248:25, 249:5, 252:3, 260:8, 260:13, 260:23, 261:22, 263:3, 264:11, 264:14, 264:19, 275:15, 275:18, 278:5, 280:12, 280:15, 280:18, 280:23, 291:15, 293:7, 294:16, 294:19, 307:2, 308:14, 316:7, 317:7, 318:10, 318:18, 319:12, 321:10, 322:15, 328:18, 330:11, 332:9, 332:17, 335:21, 335:23, 348:4, 353:20, 354:9, 370:18, 371:23, 377:7, 377:9, 377:13, 377:15, 384:21
ups [2] - 324:15, 324:16
upset [16] - 44:21, 45:3, 103:23, 103:25, 168:5, 204:12, 204:23, 206:21, 207:4, 207:24, 213:20, 226:21, 232:4, 233:15, 235:9, 343:24
upsetting [1] 103:22
upstairs [1] - 197:12 usage [1] - 99:10 useful [1] - 110:16 Utah [1] - 71:3
V
vacation [2] 163:24, 252:11
Valley [1] - 146:11 vantage [1] - 32:25

variables [1] - 319:2 varies [5] - 130:10, 130:13, 145:14, 148:21, 149:5 variety [1] - 245:2 various [9] - 48:18, 48:19, 75:2, 121:5, 246:19, 292:7, 374:15, 386:3, 389:15 vary [1] - 209:20 vehicle [1] - 224:6 velocity [3] - 305:25, 306:18, 306:24 vengeance [1] 75:25 verbal [6] - 22:21, 22:25, 23:9, 27:21, 96:2, 309:23 verbatim [1] - 156:8 verify [1] - 108:11 version [1] - 375:22 versus [4] - 34:21, 118:25, 286:20, 302:14 vested [1] - 289:14 via [2] - 78:13, 152:16 Viagra [4] - 261:6, 261:15, 261:17, 262:4 vibe [1] - 365:4 vibrate [1] - 22:10 video [32] - 35:25, 36:4, 36:6, 40:9, 42:7, 42:14, 42:15, 42:21, 43:7, 43:8, 57:7, 79:19, 79:20, 125:24, 201:10, 217:2, 218:6, 219:21, 220:21, 230:18, 231:12, 264:15, 264:19, 264:20, 275:4, 275:5, 275:7, 275:9, 275:11, 275:13, 277:11, 307:5 videos [10] - 42:10, 42:14, 200:24, 201:3, 217:21, 221:5, 221:13, 275:17, 275:19, 363:16 videotape [1] - 33:7 videotaped [2] 33:14, 33:15 view [3] - 86:14, 363:19, 363:21 viewed [3] - 80:10, 120:14, 120:15 views [1] - 30:24 vindicated [1] 201:20 violate [1] - 93:25 violated [2] - 112:11,

South Shore Court Reporting (631) 235-6218

31
112:20 violation [2] - 10:12,
380:14 Virginia [1] - 4:13 virtually [1] - 385:14 visibility [2] -
288:10, 288:15 visit [2] - 77:2,
347:22 visiting [2] - 146:14,
146:20 volume [1] - 79:20 vulnerable [3] -
265:16, 265:23, 266:6
W
wait [15] - 98:15, 122:21, 143:4, 167:12, 178:3, 205:17, 232:11, 305:6, 305:12, 306:25, 356:23, 383:21, 383:24
waiting [3] - 292:4, 304:15, 321:18
waive [1] - 24:16 waived [3] - 3:8, 11:17, 338:23 waiver [4] - 337:20, 338:16, 339:20 walkers [1] - 348:15 walking [6] - 77:19, 239:11, 348:20, 350:24, 351:6, 352:18 wall [1] - 259:10 walls [1] - 347:3 wants [2] - 84:25, 166:14 warm [1] - 178:20 warmer [1] - 316:14 warms [1] - 179:2 warns [1] - 17:18 warranted [1] 296:25 wasting [1] - 167:19 watched [1] - 353:8 watching [4] - 79:19, 80:12, 353:15, 353:17 water [5] - 182:11, 324:24, 325:2, 373:2, 374:5 wave [2] - 307:9, 307:12 ways [1] - 331:16 wear [11] - 120:11, 125:14, 125:20, 125:25, 126:8, 126:11, 126:14,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 424 of 425 PageID #: 4591

126:16, 126:24, 126:25, 376:24
wearing [5] - 120:20, 127:14, 127:17, 375:16, 375:24
weather [21] - 69:13, 69:15, 108:9, 108:13, 117:13, 147:14, 149:18, 149:21, 182:6, 188:21, 286:8, 287:5, 287:7, 293:5, 295:14, 295:20, 316:14, 319:20, 320:12, 321:11, 321:19
weather-related [1] 108:9
website [4] - 327:13, 380:22, 380:24, 381:2
websites [6] 327:21, 377:7, 377:9, 377:12, 377:15, 377:19
Wednesday [1] 108:13
week [46] - 40:6, 87:25, 88:9, 88:19, 99:8, 99:9, 99:15, 99:16, 113:9, 113:13, 114:24, 116:7, 125:17, 132:19, 142:19, 143:19, 143:22, 144:17, 144:18, 148:25, 149:3, 150:2, 150:19, 154:22, 160:18, 160:24, 182:25, 188:22, 209:3, 214:13, 214:17, 218:20, 224:4, 234:11, 260:4, 275:14, 287:4, 295:8, 295:10, 295:11, 295:14, 295:17, 326:9, 326:10
week's [1] - 260:5 weekend [10] 37:14, 63:9, 63:22, 64:18, 64:19, 260:20, 260:24, 287:10, 296:3, 296:22 weekends [8] - 57:8, 195:15, 287:8, 295:16, 295:18, 295:24, 296:12, 296:24 weeks [14] - 61:7, 75:2, 88:23, 147:7, 147:8, 148:23, 154:21, 156:6,

164:18, 194:12, 194:17, 194:23, 195:12, 355:21
weigh [1] - 86:2 weighed [5] - 85:10, 85:22, 85:24, 185:19, 279:23 weight [11] - 85:9, 85:11, 85:25, 86:4, 86:10, 86:18, 87:4, 87:7, 87:12, 87:13, 89:2 weightlifting [1] 89:8 weights [2] - 89:6, 89:9 welfare [1] - 310:11 West [1] - 2:5 Westchester [1] 114:15 what/when [1] 127:19 whatnot [1] - 283:25 whatsoever [7] 10:15, 213:2, 277:19, 311:12, 338:12, 338:18, 338:20 wheelchairs [1] 348:16 wheels [1] - 317:7 wherein [1] - 190:4 WHEREOF [1] 390:16 whispering [2] 232:3, 232:4 whispering-in-your -ear [1] - 232:3 white [1] - 368:17 who've [1] - 31:16 whole [17] - 45:7, 45:13, 57:25, 97:2, 97:8, 155:15, 169:17, 170:17, 215:6, 222:24, 240:19, 245:7, 251:14, 305:23, 324:4, 324:11, 369:25 wide [1] - 326:14 widely [1] - 209:21 wife [6] - 110:5, 110:19, 192:24, 193:12, 222:22, 242:20 William [5] - 2:20, 113:23, 115:3, 189:19, 190:4 william [1] - 189:10 Willie [9] - 72:15, 80:25, 240:23, 323:4, 323:6, 323:11,

323:12, 323:15 willing [7] - 212:23,
213:9, 288:24, 288:25, 289:3, 289:5
willingness [1] 248:2
win [1] - 314:18 window [2] - 153:14, 153:17 wingsuit [2] 375:17, 375:23 Winnie [2] - 49:21, 70:6 Winstock [23] - 29:8, 29:9, 29:23, 30:6, 30:15, 31:11, 31:19, 34:8, 34:19, 34:22, 35:2, 35:11, 44:15, 52:10, 52:17, 65:9, 70:2, 122:23, 123:4, 140:15, 148:2, 274:14, 304:13 winstock [2] - 30:2, 30:8 Winstock's [2] 49:21, 266:8 winter [7] - 62:5, 62:7, 181:11, 181:19, 197:21, 316:4, 316:6 wise [1] - 102:10 wish [1] - 391:3 withheld [1] - 309:20 WITNESS [19] 22:11, 25:17, 25:22, 25:24, 27:23, 46:9, 91:12, 166:16, 168:3, 179:7, 179:12, 230:2, 230:6, 230:11, 382:15, 383:23, 384:2, 389:4, 390:16 witness [19] - 4:2, 17:16, 22:11, 93:22, 93:23, 97:23, 98:4, 98:9, 98:17, 123:19, 123:22, 157:16, 157:23, 158:13, 158:16, 283:25, 374:22, 390:5, 390:10 witness's [2] - 22:4, 27:25 witnessed [1] 353:13 witnesses [1] - 15:24 woman [7] - 116:23, 117:4, 117:22, 227:7, 228:13, 255:9, 275:22 women [9] - 227:8, 227:12, 227:17, 227:20, 228:4, 358:11, 363:19,

363:21 won [2] - 81:2, 81:4 wonderful [2] -
266:23, 290:3 word [15] - 22:22,
22:25, 23:10, 23:11, 52:22, 111:9, 137:15, 189:23, 192:4, 222:19, 257:4, 257:10, 329:19, 364:11, 375:20
worded [1] - 354:23 wording [1] - 227:18 words [2] - 168:14, 168:25 wore [3] - 120:9, 123:9 work-wise [1] 102:10 workday [1] - 301:9 workdays [1] 323:21 workers [1] - 323:10 Workers' [23] 223:23, 224:11, 225:10, 226:21, 227:3, 233:16, 234:12, 235:9, 243:19, 243:24, 278:5, 278:9, 278:22, 279:22, 280:12, 280:15, 280:18, 280:23, 282:3, 282:6, 310:12, 310:14, 315:2 workout [5] - 86:23, 87:20, 87:22, 88:16, 324:12 workouts [1] - 324:7 workplace [2] 52:15, 70:20 works [1] - 248:19 world [5] - 55:5, 110:20, 204:10, 336:5, 378:2 worldly [1] - 162:14 worldwide [2] 152:9, 152:13 worn [1] - 324:4 worry [9] - 83:7, 141:23, 203:6, 203:20, 205:11, 205:12, 206:22, 228:6, 228:9 worse [5] - 156:10, 209:19, 341:7, 367:11, 377:20 worth [1] - 260:5 wow [1] - 371:7 write [3] - 112:3, 164:19, 303:14

South Shore Court Reporting (631) 235-6218

32
written [4] - 128:13, 129:2, 168:20, 291:12
wrote [1] - 247:22 wussy [4] - 364:3, 364:6, 364:8, 364:15
Y
year [32] - 35:17, 54:11, 82:22, 127:3, 144:16, 144:17, 145:14, 148:4, 160:14, 160:25, 161:19, 162:5, 163:3, 163:11, 179:14, 187:24, 190:23, 195:22, 195:23, 210:14, 251:10, 252:4, 272:7, 285:11, 286:3, 286:15, 287:4, 316:2, 329:11, 387:2
year-and-a-half [1] 35:17
yearly [1] - 144:21 years [47] - 63:5, 65:16, 88:5, 91:19, 92:5, 97:21, 97:25, 98:7, 98:14, 100:4, 100:7, 102:14, 107:14, 109:7, 126:22, 129:17, 130:7, 145:24, 148:2, 156:12, 185:11, 190:9, 190:20, 193:20, 195:23, 205:4, 216:14, 247:17, 250:23, 255:13, 277:24, 308:25, 309:3, 309:5, 311:19, 338:15, 340:11, 340:17, 340:21, 341:5, 341:6, 341:15, 354:6, 380:4, 380:10, 381:6, 381:7 yell [2] - 26:3, 384:3 yelled [4] - 89:23, 90:2, 225:13, 239:13 yelling [5] - 224:17, 225:18, 231:3, 234:11, 384:5 yes-or-no [2] 343:4, 343:5 yesterday [31] - 25:5, 25:7, 29:4, 29:23, 32:10, 34:6, 45:11, 45:21, 46:12, 46:16, 47:2, 47:3, 50:17, 50:25, 51:5, 51:13, 65:12, 85:9, 120:25, 140:16, 148:2,

Case 2:10-cv-04334-JFB-AYS Document 223-3 Filed 10/06/15 Page 425 of 425 PageID #: 4592

208:12, 266:18, 266:22, 267:3, 267:25, 268:3, 304:13, 326:21, 327:8, 341:4
YORK [2] - 1:2, 388:4
York [22] - 1:13, 1:22, 2:5, 2:9, 4:5, 111:3, 114:20, 130:25, 131:2, 131:9, 149:23, 210:6, 210:9, 243:25, 282:6, 299:14, 300:9, 300:11, 311:2, 388:25, 390:4
young [3] - 202:14, 203:4, 265:23
youngest [1] - 53:15 yourself [17] - 7:21, 24:15, 96:13, 110:15, 131:11, 149:8, 154:16, 190:17, 195:19, 216:7, 223:8, 231:24, 256:18, 256:22, 349:10, 364:2, 372:17 YouTube [1] - 309:6 yup [4] - 168:3, 296:7, 310:5, 322:11 Yup [1] - 241:23
Z
Zabell [14] - 4:19, 8:5, 8:6, 12:3, 12:12, 13:9, 15:4, 15:19, 17:10, 123:19, 123:21, 125:9, 166:21, 336:15
ZABELL [113] - 2:7, 2:10, 4:8, 6:20, 6:24, 7:16, 8:4, 8:16, 8:19, 8:24, 9:6, 9:8, 10:21, 10:24, 11:22, 11:25, 12:11, 12:15, 12:21, 13:6, 13:9, 14:6, 14:13, 14:19, 16:15, 16:23, 17:2, 17:9, 17:21, 18:2, 18:4, 18:7, 18:9, 22:7, 25:20, 25:25, 28:14, 28:17, 68:10, 68:16, 68:21, 90:24, 91:5, 91:8, 92:11, 92:15, 93:4, 93:14, 93:19, 94:3, 94:12, 94:20, 95:6, 123:15, 124:2, 124:24, 125:3, 135:12, 138:15,

142:16, 157:18, 158:3, 158:11, 165:11, 166:13, 167:4, 167:12, 167:23, 178:24, 179:4, 179:9, 180:10, 234:22, 235:2, 236:6, 276:20, 281:8, 281:11, 284:17, 327:2, 327:6, 336:14, 336:18, 337:12, 339:9, 339:13, 339:15, 349:5, 349:9, 349:17, 356:2, 356:6, 356:11, 374:13, 378:13, 378:16, 378:22, 379:3, 379:12, 379:17, 379:20, 381:24, 382:3, 384:13, 384:17, 384:24, 385:7, 385:16, 385:21, 386:14, 386:19, 386:23, 387:4
zabell [2] - 387:7, 389:5
Zarda [15] - 4:11, 4:15, 12:18, 13:13, 18:19, 95:18, 105:18, 105:20, 105:22, 168:2, 277:18, 362:12, 362:13, 362:14, 389:5
ZARDA [4] - 1:4, 1:15, 388:8, 388:16
Zarda's [2] - 374:16, 389:15
Zealand [1] - 60:6 zero [1] - 321:9 zip [2] - 131:7, 131:9 Zone [1] - 324:13 zone [58] - 35:6, 35:20, 38:15, 40:21, 49:18, 49:25, 55:21, 57:8, 62:22, 70:22, 70:24, 99:12, 101:5, 132:7, 132:8, 133:11, 134:4, 143:2, 146:11, 149:24, 150:8, 156:13, 195:16, 212:5, 213:13, 213:19, 224:18, 286:10, 298:15, 320:24, 320:25, 321:2, 322:24, 323:3, 324:21, 325:11, 325:16, 326:4, 326:13, 327:24, 328:2, 328:6, 328:15, 329:22, 331:18,

333:4, 340:2, 340:19, 341:6, 347:13, 347:19, 348:13, 348:18, 351:6, 351:10, 352:5, 372:20, 373:9
zones [7] - 71:17, 132:5, 202:17, 326:17, 327:20, 331:8, 348:14

South Shore Court Reporting (631) 235-6218

33

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 1 of 394 PageID #: 4593

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 2 of 394 PageID #: 4594

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 5 of 394 PageID #: 4597

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 6 of 394 PageID #: 4598

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 7 of 394 PageID #: 4599

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 8 of 394 PageID #: 4600

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 9 of 394 PageID #: 4601

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 10 of 394 PageID #: 4602

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 11 of 394 PageID #: 4603

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 12 of 394 PageID #: 4604

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 13 of 394 PageID #: 4605

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 14 of 394 PageID #: 4606

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 15 of 394 PageID #: 4607

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 16 of 394 PageID #: 4608

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 17 of 394 PageID #: 4609

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 18 of 394 PageID #: 4610

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 19 of 394 PageID #: 4611

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 20 of 394 PageID #: 4612

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 21 of 394 PageID #: 4613

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 22 of 394 PageID #: 4614

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 23 of 394 PageID #: 4615

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 24 of 394 PageID #: 4616

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 25 of 394 PageID #: 4617

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 26 of 394 PageID #: 4618

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 27 of 394 PageID #: 4619

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 28 of 394 PageID #: 4620

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 29 of 394 PageID #: 4621

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 30 of 394 PageID #: 4622

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 31 of 394 PageID #: 4623

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 32 of 394 PageID #: 4624

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 33 of 394 PageID #: 4625

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 34 of 394 PageID #: 4626

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 35 of 394 PageID #: 4627

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 36 of 394 PageID #: 4628

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 37 of 394 PageID #: 4629

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 38 of 394 PageID #: 4630

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 39 of 394 PageID #: 4631

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 40 of 394 PageID #: 4632

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 41 of 394 PageID #: 4633

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 42 of 394 PageID #: 4634

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 43 of 394 PageID #: 4635

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 44 of 394 PageID #: 4636

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 45 of 394 PageID #: 4637

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 46 of 394 PageID #: 4638

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 47 of 394 PageID #: 4639

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 48 of 394 PageID #: 4640

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 49 of 394 PageID #: 4641

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 50 of 394 PageID #: 4642

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 51 of 394 PageID #: 4643

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 52 of 394 PageID #: 4644

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 53 of 394 PageID #: 4645

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 54 of 394 PageID #: 4646

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 55 of 394 PageID #: 4647

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 56 of 394 PageID #: 4648

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 57 of 394 PageID #: 4649

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 58 of 394 PageID #: 4650

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 59 of 394 PageID #: 4651

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 60 of 394 PageID #: 4652

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 61 of 394 PageID #: 4653

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 62 of 394 PageID #: 4654

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 63 of 394 PageID #: 4655

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 64 of 394 PageID #: 4656

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 65 of 394 PageID #: 4657

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 66 of 394 PageID #: 4658

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 67 of 394 PageID #: 4659

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 68 of 394 PageID #: 4660

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 69 of 394 PageID #: 4661

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 70 of 394 PageID #: 4662

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 71 of 394 PageID #: 4663

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 72 of 394 PageID #: 4664

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 73 of 394 PageID #: 4665

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 74 of 394 PageID #: 4666

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 75 of 394 PageID #: 4667

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 76 of 394 PageID #: 4668

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 77 of 394 PageID #: 4669

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 78 of 394 PageID #: 4670

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 79 of 394 PageID #: 4671

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 80 of 394 PageID #: 4672

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 81 of 394 PageID #: 4673

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 82 of 394 PageID #: 4674

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 83 of 394 PageID #: 4675

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 84 of 394 PageID #: 4676

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 85 of 394 PageID #: 4677

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 86 of 394 PageID #: 4678

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 87 of 394 PageID #: 4679

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 88 of 394 PageID #: 4680

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 89 of 394 PageID #: 4681

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 90 of 394 PageID #: 4682

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 91 of 394 PageID #: 4683

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 92 of 394 PageID #: 4684

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 93 of 394 PageID #: 4685

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 94 of 394 PageID #: 4686

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 95 of 394 PageID #: 4687

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 96 of 394 PageID #: 4688

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 97 of 394 PageID #: 4689

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 98 of 394 PageID #: 4690

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 99 of 394 PageID #: 4691

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 100 of 394 PageID #: 4692

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 101 of 394 PageID #: 4693

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 102 of 394 PageID #: 4694

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 103 of 394 PageID #: 4695

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 104 of 394 PageID #: 4696

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 105 of 394 PageID #: 4697

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 106 of 394 PageID #: 4698

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 107 of 394 PageID #: 4699

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 108 of 394 PageID #: 4700

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 109 of 394 PageID #: 4701

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 110 of 394 PageID #: 4702

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 111 of 394 PageID #: 4703

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 112 of 394 PageID #: 4704

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 113 of 394 PageID #: 4705

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 114 of 394 PageID #: 4706

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 115 of 394 PageID #: 4707

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 116 of 394 PageID #: 4708

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 117 of 394 PageID #: 4709

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 118 of 394 PageID #: 4710

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 119 of 394 PageID #: 4711

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 120 of 394 PageID #: 4712

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 121 of 394 PageID #: 4713

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 122 of 394 PageID #: 4714

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 123 of 394 PageID #: 4715

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 124 of 394 PageID #: 4716

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 125 of 394 PageID #: 4717

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 126 of 394 PageID #: 4718

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 127 of 394 PageID #: 4719

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 128 of 394 PageID #: 4720

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 129 of 394 PageID #: 4721

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 130 of 394 PageID #: 4722

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 131 of 394 PageID #: 4723

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 132 of 394 PageID #: 4724

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 133 of 394 PageID #: 4725

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 134 of 394 PageID #: 4726

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 135 of 394 PageID #: 4727

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 136 of 394 PageID #: 4728

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 137 of 394 PageID #: 4729

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 138 of 394 PageID #: 4730

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 139 of 394 PageID #: 4731

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 140 of 394 PageID #: 4732

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 141 of 394 PageID #: 4733

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 142 of 394 PageID #: 4734

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 143 of 394 PageID #: 4735

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 144 of 394 PageID #: 4736

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 145 of 394 PageID #: 4737

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 146 of 394 PageID #: 4738

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 147 of 394 PageID #: 4739

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 148 of 394 PageID #: 4740

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 149 of 394 PageID #: 4741

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 150 of 394 PageID #: 4742

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 151 of 394 PageID #: 4743

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 152 of 394 PageID #: 4744

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 153 of 394 PageID #: 4745

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 154 of 394 PageID #: 4746

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 189 of 394 PageID #: 4781

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 190 of 394 PageID #: 4782

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 192 of 394 PageID #: 4784

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 195 of 394 PageID #: 4787

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 196 of 394 PageID #: 4788

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 197 of 394 PageID #: 4789

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 198 of 394 PageID #: 4790

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 199 of 394 PageID #: 4791

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 200 of 394 PageID #: 4792

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 201 of 394 PageID #: 4793

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 203 of 394 PageID #: 4795

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 204 of 394 PageID #: 4796

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 206 of 394 PageID #: 4798

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 207 of 394 PageID #: 4799

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 209 of 394 PageID #: 4801

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 211 of 394 PageID #: 4803

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 212 of 394 PageID #: 4804

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 213 of 394 PageID #: 4805

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 214 of 394 PageID #: 4806

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 215 of 394 PageID #: 4807

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 216 of 394 PageID #: 4808

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 217 of 394 PageID #: 4809

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 218 of 394 PageID #: 4810

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 219 of 394 PageID #: 4811

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 220 of 394 PageID #: 4812

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 221 of 394 PageID #: 4813

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 222 of 394 PageID #: 4814

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 223 of 394 PageID #: 4815

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 224 of 394 PageID #: 4816

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 225 of 394 PageID #: 4817

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 226 of 394 PageID #: 4818

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 227 of 394 PageID #: 4819

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 228 of 394 PageID #: 4820

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 229 of 394 PageID #: 4821

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 237 of 394 PageID #: 4829

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 238 of 394 PageID #: 4830

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 240 of 394 PageID #: 4832

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 241 of 394 PageID #: 4833

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 242 of 394 PageID #: 4834

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 243 of 394 PageID #: 4835

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 244 of 394 PageID #: 4836

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 245 of 394 PageID #: 4837

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 246 of 394 PageID #: 4838

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 247 of 394 PageID #: 4839

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 249 of 394 PageID #: 4841

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 250 of 394 PageID #: 4842

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 251 of 394 PageID #: 4843

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 252 of 394 PageID #: 4844

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 253 of 394 PageID #: 4845

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 254 of 394 PageID #: 4846

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 255 of 394 PageID #: 4847

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 256 of 394 PageID #: 4848

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 257 of 394 PageID #: 4849

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 258 of 394 PageID #: 4850

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 259 of 394 PageID #: 4851

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 260 of 394 PageID #: 4852

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 261 of 394 PageID #: 4853

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 263 of 394 PageID #: 4855

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 264 of 394 PageID #: 4856

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 265 of 394 PageID #: 4857

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 266 of 394 PageID #: 4858

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 267 of 394 PageID #: 4859

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 268 of 394 PageID #: 4860

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 269 of 394 PageID #: 4861

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 270 of 394 PageID #: 4862

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 271 of 394 PageID #: 4863

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 272 of 394 PageID #: 4864

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 273 of 394 PageID #: 4865

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 274 of 394 PageID #: 4866

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 278 of 394 PageID #: 4870

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 279 of 394 PageID #: 4871

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 280 of 394 PageID #: 4872

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 281 of 394 PageID #: 4873

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 282 of 394 PageID #: 4874

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 283 of 394 PageID #: 4875

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 284 of 394 PageID #: 4876

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 285 of 394 PageID #: 4877

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 286 of 394 PageID #: 4878

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 287 of 394 PageID #: 4879

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 288 of 394 PageID #: 4880

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 289 of 394 PageID #: 4881

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 290 of 394 PageID #: 4882

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 291 of 394 PageID #: 4883

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 293 of 394 PageID #: 4885

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Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 296 of 394 PageID #: 4888

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 297 of 394 PageID #: 4889

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 298 of 394 PageID #: 4890

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 299 of 394 PageID #: 4891

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 300 of 394 PageID #: 4892

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 301 of 394 PageID #: 4893

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 302 of 394 PageID #: 4894

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 303 of 394 PageID #: 4895

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 304 of 394 PageID #: 4896

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 305 of 394 PageID #: 4897

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 306 of 394 PageID #: 4898

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 307 of 394 PageID #: 4899

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 308 of 394 PageID #: 4900

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 309 of 394 PageID #: 4901

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 310 of 394 PageID #: 4902

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 311 of 394 PageID #: 4903

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 312 of 394 PageID #: 4904

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 313 of 394 PageID #: 4905

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 314 of 394 PageID #: 4906

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 315 of 394 PageID #: 4907

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 316 of 394 PageID #: 4908

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 317 of 394 PageID #: 4909

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 318 of 394 PageID #: 4910

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 319 of 394 PageID #: 4911

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 320 of 394 PageID #: 4912

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 321 of 394 PageID #: 4913

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 322 of 394 PageID #: 4914

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 323 of 394 PageID #: 4915

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 324 of 394 PageID #: 4916

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 325 of 394 PageID #: 4917

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 326 of 394 PageID #: 4918

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 327 of 394 PageID #: 4919

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 328 of 394 PageID #: 4920

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 329 of 394 PageID #: 4921

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 330 of 394 PageID #: 4922

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 331 of 394 PageID #: 4923

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 332 of 394 PageID #: 4924

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 333 of 394 PageID #: 4925

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 334 of 394 PageID #: 4926

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 335 of 394 PageID #: 4927

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 336 of 394 PageID #: 4928

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 337 of 394 PageID #: 4929

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 338 of 394 PageID #: 4930

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 339 of 394 PageID #: 4931

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 340 of 394 PageID #: 4932

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 341 of 394 PageID #: 4933

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 342 of 394 PageID #: 4934

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 343 of 394 PageID #: 4935

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 344 of 394 PageID #: 4936

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 345 of 394 PageID #: 4937

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 346 of 394 PageID #: 4938

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 347 of 394 PageID #: 4939

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 348 of 394 PageID #: 4940

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 349 of 394 PageID #: 4941

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 350 of 394 PageID #: 4942

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 351 of 394 PageID #: 4943

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 352 of 394 PageID #: 4944

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 353 of 394 PageID #: 4945

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 354 of 394 PageID #: 4946

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 355 of 394 PageID #: 4947

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 356 of 394 PageID #: 4948

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 357 of 394 PageID #: 4949

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 358 of 394 PageID #: 4950

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 359 of 394 PageID #: 4951

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 360 of 394 PageID #: 4952

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 361 of 394 PageID #: 4953

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 362 of 394 PageID #: 4954

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 363 of 394 PageID #: 4955

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 364 of 394 PageID #: 4956

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 365 of 394 PageID #: 4957

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 366 of 394 PageID #: 4958

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 367 of 394 PageID #: 4959

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 368 of 394 PageID #: 4960

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 369 of 394 PageID #: 4961

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 370 of 394 PageID #: 4962

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 371 of 394 PageID #: 4963

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 372 of 394 PageID #: 4964

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 373 of 394 PageID #: 4965

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 374 of 394 PageID #: 4966

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 375 of 394 PageID #: 4967

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 376 of 394 PageID #: 4968

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 377 of 394 PageID #: 4969

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 378 of 394 PageID #: 4970

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 379 of 394 PageID #: 4971

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 380 of 394 PageID #: 4972

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 381 of 394 PageID #: 4973

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 382 of 394 PageID #: 4974

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 383 of 394 PageID #: 4975

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 384 of 394 PageID #: 4976

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 385 of 394 PageID #: 4977

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 386 of 394 PageID #: 4978

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 387 of 394 PageID #: 4979

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 388 of 394 PageID #: 4980

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 389 of 394 PageID #: 4981

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 390 of 394 PageID #: 4982

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 391 of 394 PageID #: 4983

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 392 of 394 PageID #: 4984

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 393 of 394 PageID #: 4985

Case 2:10-cv-04334-JFB-AYS Document 223-4 Filed 10/06/15 Page 394 of 394 PageID #: 4986

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 1 of 31 PageID #: 4987

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 2 of 31 PageID #: 4988

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 3 of 31 PageID #: 4989

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 4 of 31 PageID #: 4990

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 5 of 31 PageID #: 4991

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 6 of 31 PageID #: 4992

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 7 of 31 PageID #: 4993

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 8 of 31 PageID #: 4994

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 9 of 31 PageID #: 4995

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 10 of 31 PageID #: 4996

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 11 of 31 PageID #: 4997

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 12 of 31 PageID #: 4998

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 13 of 31 PageID #: 4999

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 14 of 31 PageID #: 5000

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 15 of 31 PageID #: 5001

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 16 of 31 PageID #: 5002

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 17 of 31 PageID #: 5003

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 18 of 31 PageID #: 5004

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 19 of 31 PageID #: 5005

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 20 of 31 PageID #: 5006

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 21 of 31 PageID #: 5007

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 22 of 31 PageID #: 5008

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 23 of 31 PageID #: 5009

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 24 of 31 PageID #: 5010

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 25 of 31 PageID #: 5011

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 26 of 31 PageID #: 5012

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 27 of 31 PageID #: 5013

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 28 of 31 PageID #: 5014

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 29 of 31 PageID #: 5015

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 30 of 31 PageID #: 5016

Case 2:10-cv-04334-JFB-AYS Document 223-5 Filed 10/06/15 Page 31 of 31 PageID #: 5017

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 1 of 131 PageID #: 5018

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 2 of 131 PageID #: 5019

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 3 of 131 PageID #: 5020

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 4 of 131 PageID #: 5021

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 5 of 131 PageID #: 5022

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 6 of 131 PageID #: 5023

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 7 of 131 PageID #: 5024

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 8 of 131 PageID #: 5025

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 9 of 131 PageID #: 5026

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 10 of 131 PageID #: 5027

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 11 of 131 PageID #: 5028

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 12 of 131 PageID #: 5029

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 13 of 131 PageID #: 5030

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 14 of 131 PageID #: 5031

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 15 of 131 PageID #: 5032

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 16 of 131 PageID #: 5033

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 17 of 131 PageID #: 5034

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 18 of 131 PageID #: 5035

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 19 of 131 PageID #: 5036

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 20 of 131 PageID #: 5037

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 21 of 131 PageID #: 5038

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 22 of 131 PageID #: 5039

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 23 of 131 PageID #: 5040

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 24 of 131 PageID #: 5041

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 25 of 131 PageID #: 5042

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 26 of 131 PageID #: 5043

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 27 of 131 PageID #: 5044

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 28 of 131 PageID #: 5045

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 29 of 131 PageID #: 5046

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 30 of 131 PageID #: 5047

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 31 of 131 PageID #: 5048

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 32 of 131 PageID #: 5049

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 33 of 131 PageID #: 5050

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 34 of 131 PageID #: 5051

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 35 of 131 PageID #: 5052

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 36 of 131 PageID #: 5053

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 37 of 131 PageID #: 5054

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 38 of 131 PageID #: 5055

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 39 of 131 PageID #: 5056

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 40 of 131 PageID #: 5057

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 41 of 131 PageID #: 5058

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 42 of 131 PageID #: 5059

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 43 of 131 PageID #: 5060

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 44 of 131 PageID #: 5061

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 45 of 131 PageID #: 5062

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 46 of 131 PageID #: 5063

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 47 of 131 PageID #: 5064

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 48 of 131 PageID #: 5065

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 49 of 131 PageID #: 5066

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 50 of 131 PageID #: 5067

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 51 of 131 PageID #: 5068

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 52 of 131 PageID #: 5069

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 53 of 131 PageID #: 5070

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 54 of 131 PageID #: 5071

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 55 of 131 PageID #: 5072

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 56 of 131 PageID #: 5073

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 57 of 131 PageID #: 5074

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 58 of 131 PageID #: 5075

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 59 of 131 PageID #: 5076

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 60 of 131 PageID #: 5077

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 61 of 131 PageID #: 5078

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 62 of 131 PageID #: 5079

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 63 of 131 PageID #: 5080

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 64 of 131 PageID #: 5081

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 65 of 131 PageID #: 5082

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 66 of 131 PageID #: 5083

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 67 of 131 PageID #: 5084

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 68 of 131 PageID #: 5085

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 69 of 131 PageID #: 5086

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 70 of 131 PageID #: 5087

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 71 of 131 PageID #: 5088

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 72 of 131 PageID #: 5089

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 73 of 131 PageID #: 5090

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 74 of 131 PageID #: 5091

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 75 of 131 PageID #: 5092

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 76 of 131 PageID #: 5093

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 77 of 131 PageID #: 5094

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 78 of 131 PageID #: 5095

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 79 of 131 PageID #: 5096

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 80 of 131 PageID #: 5097

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 81 of 131 PageID #: 5098

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 82 of 131 PageID #: 5099

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 83 of 131 PageID #: 5100

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 84 of 131 PageID #: 5101

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 85 of 131 PageID #: 5102

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 86 of 131 PageID #: 5103

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 87 of 131 PageID #: 5104

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 88 of 131 PageID #: 5105

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 89 of 131 PageID #: 5106

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 90 of 131 PageID #: 5107

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 91 of 131 PageID #: 5108

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 92 of 131 PageID #: 5109

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 93 of 131 PageID #: 5110

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 94 of 131 PageID #: 5111

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 95 of 131 PageID #: 5112

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 96 of 131 PageID #: 5113

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 97 of 131 PageID #: 5114

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 98 of 131 PageID #: 5115

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 99 of 131 PageID #: 5116

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 100 of 131 PageID #: 5117

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 101 of 131 PageID #: 5118

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 102 of 131 PageID #: 5119

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 103 of 131 PageID #: 5120

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 104 of 131 PageID #: 5121

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 105 of 131 PageID #: 5122

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 106 of 131 PageID #: 5123

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 107 of 131 PageID #: 5124

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 108 of 131 PageID #: 5125

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 109 of 131 PageID #: 5126

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 110 of 131 PageID #: 5127

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 111 of 131 PageID #: 5128

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 112 of 131 PageID #: 5129

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 113 of 131 PageID #: 5130

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 114 of 131 PageID #: 5131

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 115 of 131 PageID #: 5132

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 116 of 131 PageID #: 5133

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 117 of 131 PageID #: 5134

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 118 of 131 PageID #: 5135

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 119 of 131 PageID #: 5136

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 120 of 131 PageID #: 5137

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 121 of 131 PageID #: 5138

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 122 of 131 PageID #: 5139

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 123 of 131 PageID #: 5140

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 124 of 131 PageID #: 5141

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 125 of 131 PageID #: 5142

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 126 of 131 PageID #: 5143

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 127 of 131 PageID #: 5144

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 128 of 131 PageID #: 5145

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 129 of 131 PageID #: 5146

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 130 of 131 PageID #: 5147

Case 2:10-cv-04334-JFB-AYS Document 223-6 Filed 10/06/15 Page 131 of 131 PageID #: 5148

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 1 of 21 PageID #: 5149

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 2 of 21 PageID #: 5150

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 3 of 21 PageID #: 5151

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 4 of 21 PageID #: 5152

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 5 of 21 PageID #: 5153

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 6 of 21 PageID #: 5154

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 7 of 21 PageID #: 5155

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 8 of 21 PageID #: 5156

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 9 of 21 PageID #: 5157

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 10 of 21 PageID #: 5158

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 11 of 21 PageID #: 5159

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 12 of 21 PageID #: 5160

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 13 of 21 PageID #: 5161

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 14 of 21 PageID #: 5162

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 15 of 21 PageID #: 5163

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 16 of 21 PageID #: 5164

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 17 of 21 PageID #: 5165

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 18 of 21 PageID #: 5166

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 19 of 21 PageID #: 5167

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 20 of 21 PageID #: 5168

Case 2:10-cv-04334-JFB-AYS Document 223-7 Filed 10/06/15 Page 21 of 21 PageID #: 5169

Case 2:10-cv-04334-JFB-AYS Document 223-8 Filed 10/06/15 Page 1 of 29 PageID #: 5170

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 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

883 F.3d 100 United States Court of Appeals, Second Circuit.
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 |
Argued: September 26, 2017 |
Decided: February 26, 2018
Synopsis Background: Gay former employee brought action against employer alleging, inter alia, gender stereotyping discrimination in violation of Title VII and sexual orientation discrimination in violation of New York law. The United States District Court for the Eastern District of New York, Bianco, J., granted summary judgment in favor of employer with respect to Title VII claim, and jury subsequently found for employer on state law claim. Executors of former employee’s estate, who were substituted as plaintiffs when employee died before trial, appealed. The Court of Appeals, 855 F.3d 76, affirmed.
Holdings: On rehearing en banc, the Court of Appeals, Katzmann, Chief Judge, held that:
decision by Court of Appeals on question of whether Title VII applied to sexual orientation discrimination would not constitute advisory opinion;
sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII, overruling Simonton v. Runyon, 232 F.3d 33, and Dawson v. Bumble, 398 F.3d 211; and
employee was entitled to bring Title VII claim for discrimination based on sexual orientation.
1

Affirmed in part, vacated in part, and remanded.
Dennis Jacobs, Circuit Judge, filed opinion concurring in part.
José A. Cabranes, Circuit Judge, filed opinion concurring in the judgment.
Sack, Circuit Judge, filed opinion concurring in part and in the judgment.
Raymond J. Lohier, Jr., Circuit Judge, filed opinion concurring in part.
Gerard E. Lynch, Circuit Judge, filed dissenting opinion in which Livingston, Circuit Judge, joined in part.
Debra Ann Livingston, Circuit Judge, filed dissenting opinion.
Reena Raggi, Circuit Judge, filed dissenting opinion.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
Attorneys and Law Firms
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

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

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
2

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

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

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.*
Opinion
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:
*105 *106 *107 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,
3

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 ‘sexbased 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 *108 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, ––– U.S. ––––, 138 S.Ct. 557, 199 L.Ed.2d 446 (2017). One month later, the Seventh Circuit, sitting en banc, took “a fresh look at [its] position in light of developments at the Supreme Court extending over two decades” and held that “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively, 853 F.3d at 340–41. In addition, a concurring opinion of this Court recently called “for the Court to revisit” this question, emphasizing the “changing legal landscape that has taken shape in the nearly two decades since Simonton issued,” and identifying multiple arguments that support the conclusion that sexual orientation discrimination is barred by Title VII. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 202 (2d Cir. 2017) (Katzmann, C.J., concurring) (“Christiansen and amici advance three arguments, none previously addressed by this Court ....”); see also id. at 204 (“Neither Simonton nor Dawson addressed [the but-for] argument.”).
Taking note of the potential persuasive force of these new decisions, we convened en banc to reevaluate Simonton and Dawson in light of arguments not previously considered by this Court. Having done so, we now hold that Title VII prohibits discrimination on the basis of

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

sexual orientation as discrimination “because of ... sex.” To the extent that our prior precedents held otherwise, they are overruled.
We therefore VACATE the district court’s judgment on Zarda’s Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.
BACKGROUND
The facts and procedural history of this case are discussed in detail in our prior panel decision. See Zarda v. Altitude Express, 855 F.3d 76, 79–81 (2d Cir. 2017). We recite them only as necessary to address the legal question under consideration.
In the summer of 2010, Donald Zarda, a gay man, worked as a sky-diving instructor at Altitude Express. As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients. In an environment where close physical proximity was common, Zarda’s co-workers routinely referenced sexual orientation or made sexual jokes around clients, and Zarda sometimes told female clients about his sexual orientation to assuage any concern they might have about being strapped to a man for a tandem skydive. That June, Zarda told a female client with whom he was preparing for a tandem skydive that he was gay “and ha[d] an exhusband to prove it.” J.A. 400 ¶ 23. Although he later said this disclosure was intended simply to preempt any discomfort the client may have felt in being strapped to the body of an unfamiliar man, the client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior. After the jump was successfully completed, the client told her boyfriend about Zarda’s alleged behavior and reference to his sexual orientation; the boyfriend in turn told Zarda’s boss, who fired shortly Zarda thereafter. *109 Zarda denied inappropriately touching the client and insisted he was fired solely because of his reference to his sexual orientation.
One month later, Zarda filed a discrimination charge with the EEOC concerning his termination. Zarda claimed that “in addition to being discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.” Special Appendix (“S.A.”) 3. In particular, he claimed that “[a]ll of the men at [his workplace] made light of the intimate nature of
4

being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” S.A. 5.
In September 2010, Zarda brought a lawsuit in federal court alleging, inter alia, sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of New York law. Defendants moved for summary judgment arguing that Zarda’s Title VII claim should be dismissed because, although “Plaintiff testifie[d] repeatedly that he believe[d] the reason he was terminated [was] because of his sexual orientation ... [,] under Title VII, a gender stereotype cannot be predicated on sexual orientation.” Dist. Ct. Dkt. No. 109 at 3 (citing Simonton, 232 F.3d at 35). In March 2014, the district court granted summary judgment to the defendants on the Title VII claim. As relevant here, the district court concluded that, although there was sufficient evidence to permit plaintiff to proceed with his claim for sexual orientation discrimination under New York law, plaintiff had failed to establish a prima facie case of gender stereotyping discrimination under Title VII.
While Zarda’s remaining claims were still pending, the EEOC decided Baldwin, holding that “allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.” 2015 WL 4397641 at *10. The Commission identified three ways to illustrate what it described as the “inescapable link between allegations of sexual orientation discrimination and sex discrimination.” Id. at *5. First, sexual orientation discrimination, such as suspending a lesbian employee for displaying a photo of her female spouse on her desk while not suspending a man for displaying a photo of his female spouse, “is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. Second, it is “associational discrimination” because “an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Id. at *6. Lastly, sexual orientation discrimination “necessarily involves discrimination based on gender stereotypes,” most commonly “heterosexually defined gender norms.” Id. at *7–8 (internal quotation marks omitted). Shortly thereafter, Zarda moved to have his Title VII claim reinstated based on Baldwin. But, the district court denied the motion, concluding that Simonton remained binding precedent.
Zarda’s surviving claims, which included his claim for sexual orientation discrimination under New York law,

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

went to trial, where defendants prevailed. After judgment was entered for the defendants, Zarda appealed. As relevant here, Zarda argued that Simonton should be overturned because the EEOC’s reasoning in Baldwin demonstrated that Simonton was incorrectly decided. By contrast, defendants argued that the court did not need to reach that issue because the jury found that they *110 had not discriminated based on sexual orientation.
The panel held that “Zarda’s [federal] sex-discrimination claim [was] properly before [it] because [his state law claim was tried under] a higher standard of causation than required by Title VII.” Zarda, 855 F.3d at 81. However, the panel “decline[d] Zarda’s invitation to revisit our precedent,” which “can only be overturned by the entire Court sitting in banc.” Id. at 82. The Court subsequently ordered this rehearing en banc to revisit Simonton and Dawson’s holdings that claims of sexual orientation discrimination are not cognizable under Title VII.
DISCUSSION
I. Jurisdiction
We first address the defendants’ challenge to our jurisdiction. Article III of the Constitution grants federal courts the authority to hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. As a result, “a federal court has neither the power to render advisory opinions nor ‘to decide questions that cannot affect the rights of litigants in the case before them.’ ” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) ). The defendants argue that any decision on the merits would be an advisory opinion because Zarda did not allege sexual orientation discrimination in his EEOC charge or his federal complaint and therefore the question of whether Title VII applies to sexual orientation discrimination is not properly before us.
Irrespective of whether defendants’ argument is actually jurisdictional,4 its factual premises are patently contradicted by both the record and the position defendants advanced below. Zarda’s EEOC complaint explained that he was “making this charge because, in addition to being discriminated against because of [his]
5

sexual orientation, [he] was also discriminated against because of [his] gender.” S.A. 3.5 Zarda specified that his supervisor “was hostile to any expression of [his] sexual orientation that did not conform to sex stereotypes,” and alleged that he “was fired ... because ... [he] honestly referred to [his] sexual orientation and *111 did not conform to the straight male macho stereotype.” S.A. 3, 5. Zarda repeated this claim in his federal complaint, contending that he was “an openly gay man” who was “discharge[ed] because of a homophobic customer” and “because his behavior did not conform to sex stereotypes,” in violation of Title VII. J.A. 65, 69, 75.
Defendants plainly understood Zarda’s complaint to have raised a claim for sexual orientation discrimination under Title VII. In their motion for summary judgment, defendants argued that Zarda’s claim “relies on the fact that Plaintiff is homosexual, not that he failed to comply with male gender norms. Thus, Plaintiff[ ] merely attempts to bring a defective sexual orientation claim under Title VII, which is legally invalid.” Dist. Ct. Dkt. No. 109 at 9 (citing Dawson, 398 F.3d at 221). The district court ultimately agreed.
Having interpreted Zarda’s Title VII claim as one for sexual orientation discrimination for purposes of insisting that the claim be dismissed, defendants cannot now argue that there is no sexual orientation claim to prevent this Court from reviewing the basis for the dismissal. Both defendants and the district court clearly understood that Zarda had alleged sexual orientation discrimination under Title VII. As a result, Zarda’s Title VII claim is neither unexhausted nor unpled, and so it may proceed.6
II. Sexual Orientation Discrimination
A. The Scope of Title VII
“In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse, 490 U.S. at 239, 109 S.Ct. 1775. The text of Title VII provides, in relevant part:

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ....
42 U.S.C. § 2000e-2(a)(1). This “broad rule of workplace equality,” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), “strike[s] at the entire spectrum of disparate treatment” based on protected characteristics, L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) ), “regardless of whether the discrimination is directed against majorities or minorities,” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71–72, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). As a result, we have stated that “Title VII should be interpreted broadly to achieve equal employment opportunity.” Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 935 (2d Cir. 1988) (citing Griggs v. Duke Power Co., 401 U.S. 424, 429–36, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ).
In deciding whether Title VII prohibits sexual orientation discrimination, we are guided, as always, by the text and, in particular, by the phrase “because of ... *112 sex.” However, in interpreting this language, we do not write on a blank slate. Instead, we must construe the text in light of the entirety of the statute as well as relevant precedent. As defined by Title VII, an employer has engaged in “impermissible consideration of ... sex ... in employment practices” when “sex ... was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” 42 U.S.C. § 2000e-2(m). Accordingly, the critical inquiry for a court assessing whether an employment practice is “because of ... sex” is whether sex was “a motivating factor.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 23 (2d Cir. 2014).
Recognizing that Congress intended to make sex “irrelevant” to employment decisions, Griggs, 401 U.S. at 436, 91 S.Ct. 849, the Supreme Court has held that Title VII prohibits not just discrimination based on sex itself, but also discrimination based on traits that are a function of sex, such as life expectancy, Manhart, 435 U.S. at 711, 98 S.Ct. 1370, and non-conformity with gender norms,
6

Price Waterhouse, 490 U.S. at 250–51, 109 S.Ct. 1775. As this Court has recognized, “any meaningful regime of antidiscrimination law must encompass such claims” because, if an employer is “ ‘[f]ree to add non-sex factors, the rankest sort of discrimination’ ” could be worked against employees by using traits that are associated with sex as a proxy for sex. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 n.9 (2d Cir. 2004) (quoting Phillips v. Martin Marietta Corp., 416 F.2d 1257, 1260 (5th Cir. 1969) (Brown, C.J., dissenting from denial of rehearing en banc) ). Applying Title VII to traits that are a function of sex is consistent with the Supreme Court’s view that Title VII covers not just “the principal evil[s] Congress was concerned with when it enacted” the statute in 1964, but also “reasonably comparable evils” that meet the statutory requirements. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
With this understanding in mind, the question before us is whether an employee’s sex is necessarily a motivating factor in discrimination based on sexual orientation. If it is, then sexual orientation discrimination is properly understood as “a subset of actions taken on the basis of sex.” Hively, 853 F.3d at 343.7
B. Sexual Orientation Discrimination as a Subset of Sex Discrimination
We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination. Looking first to the text of Title VII, the most natural reading of the statute’s prohibition on discrimination “because of ... sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation. This statutory reading is reinforced by considering the question from the perspective of sex stereotyping because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions. In addition, looking at the question from the perspective of associational discrimination, sexual orientation discrimination—which is motivated by an *113 employer’s opposition to romantic association between particular sexes—is discrimination based on the employee’s own sex.

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

1. Sexual Orientation as a Function of Sex
a. “Because of ... sex” We begin by considering the nature of sexual orientation discrimination. The term “sexual orientation” refers to “[a] person’s predisposition or inclination toward sexual activity or behavior with other males or females” and is commonly categorized as “heterosexuality, homosexuality, or bisexuality.” See Sexual Orientation, Black’s Law Dictionary (10th ed. 2014). To take one example, “homosexuality” is “characterized by sexual desire for a person of the same sex.” Homosexual, id.; see also Heterosexual, id. (“Of, relating to, or characterized by sexual desire for a person of the opposite sex.”); Bisexual, id. (“Of, relating to, or characterized by sexual desire for both males and females.”). To operationalize this definition and identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to whom he or she is attracted. Hively, 853 F.3d at 358 (Flaum, J., concurring) (“One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ [sex] ... meaningless.”). Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected. See id. (“[D]iscriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex.”).8
Choosing not to acknowledge the sex-dependent nature of sexual orientation, certain amici contend that employers discriminating on the basis of sexual orientation can do so without reference to sex.9 In support of this assertion, they point to Price Waterhouse, where the Supreme Court observed that one way to discern the motivation behind an employment decision is to consider whether, “if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be” the applicant or employee’s sex. 490 U.S. at 250, 109 S.Ct. 1775. Relying on this language, these amici argue that a “truthful” response to an inquiry about why an employee was fired would be “I fired him because he is gay,” not “I fired him because he is a man.” But this semantic sleight of hand is not a defense; it is a distraction. The employer’s failure to
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reference gender directly does not change the fact that a “gay” employee is simply a man who is attracted to men. *114 For purposes of Title VII, firing a man because he is attracted to men is a decision motivated, at least in part, by sex. More broadly, were this Court to credit amici’s argument, employers would be able to rebut a discrimination claim by merely characterizing their action using alternative terminology. Title VII instructs courts to examine employers’ motives, not merely their choice of words. See 42 U.S.C. § 2000e-2(m). As a result, firing an employee because he is “gay” is a form of sex discrimination.10
The argument has also been made that it is not “even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation[.]” Hively, 853 F.3d at 362 (Sykes, J., dissenting). Even if that were so, the same could also be said of multiple forms of discrimination that are indisputably prohibited by Title VII, as the Supreme Court and lower courts have determined. Consider, for example, sexual harassment and hostile work environment claims, both of which were initially believed to fall outside the scope of Title VII’s prohibition.
In 1974, a district court dismissed a female employee’s claim for sexual harassment reasoning that “[t]he substance of [her] complaint [was] that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor.” Barnes v. Train, No. 1828-73, 1974 WL 10628, at *1 (D.D.C. Aug. 9, 1974). The district court concluded that this conduct, although “inexcusable,” was “not encompassed by [Title VII].” Id. The D.C. Circuit reversed. Unlike the district court, it recognized that the plaintiff “became the target of her supervisor’s sexual desires because she was a woman.” Barnes v. Costle, 561 F.2d 983, 990 (D.C. Cir. 1977) (emphasis added). As a result the D.C. Circuit held that “gender cannot be eliminated from [plaintiff’s formulation of her claim] and that formulation advances a prima facie case of sex discrimination within the purview of Title VII” because “it is enough that gender is a factor contributing to the discrimination.” Id. Today, the Supreme Court and lower courts “uniformly” recognize sexual harassment claims as a violation of Title VII, see, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), notwithstanding the fact that, as evidenced by the district court decision in Barnes, this was not necessarily obvious from the face of the statute.

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The Supreme Court has also acknowledged that a “hostile work environment,” although it “do[es] not appear in the statutory text,” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), violates Title VII by affecting the “psychological aspects of the workplace environment,” Meritor, 477 U.S. at 64, 106 S.Ct. 2399 (internal quotation marks omitted). As Judge Goldberg, one of the early proponents of hostile work environment claims, explained in a case involving national origin discrimination,
[Title VII’s] language evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of *115 such nefarious activities. Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow.
Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971). Stated differently, because Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used. See Pullman–Standard v. Swint, 456 U.S. 273, 276, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“Title VII is a broad remedial measure, designed ‘to assure equality of employment opportunities.’ ” (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ) ).
The Supreme Court gave voice to this principle of construction when it held that Title VII barred male-onmale sexual harassment, which “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Oncale, 523 U.S. at 79–80, 118 S.Ct. 998, and which few people in 1964 would likely have understood to be covered by the statutory text. But the Court was untroubled by these facts. “[S]tatutory prohibitions,” it explained, “often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are
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governed.” Id. Applying this reasoning to the question at hand, the fact that Congress might not have contemplated that discrimination “because of ... sex” would encompass sexual orientation discrimination does not limit the reach of the statute.
The dissent disagrees with this conclusion. It does not dispute our definition of the word “sex,” Lead Dissent at 145, nor does it argue that this word had a different meaning in 1964. Instead, it charges us with “misconceiv[ing] the fundamental public meaning of the language of” Title VII. Id. at 143 (emphasis omitted). According to the dissent, the drafters included “sex” in Title VII to “secure the rights of women to equal protection in employment,” id. at 145, and had no intention of prohibiting sexual orientation discrimination, id. at 142–43. We take no position on the substance of the dissent’s discussion of the legislative history or the zeitgeist of the 1960s, but we respectfully disagree with its approach to interpreting Title VII as well as its conclusion that sexual orientation discrimination is not a “reasonably comparable evil,” Oncale, 523 U.S. at 79, 118 S.Ct. 998, to sexual harassment and male-on-male harassment. Although legislative history most certainly has its uses, in ascertaining statutory meaning in a Title VII case, Oncale specifically rejects reliance on “the principal concerns of our legislators,” id. at 79–80, 118 S.Ct. 998—the centerpiece of the dissent’s statutory analysis. Rather, Oncale instructs that the text is the lodestar of statutory interpretation, emphasizing that we are governed “by the provisions of our laws.” Id. The text before us uses broad language, prohibiting discrimination “because of ... sex,” which Congress defined as making sex “a motivating factor.” 42 U.S.C. §§ 2000e-2(a)(1), 2000e-2(m). We give these words their full scope and conclude that, because sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils long recognized as violating Title VII, the statute must prohibit it.11
*116 b. “But for” an Employee’s Sex Our conclusion is reinforced by the Supreme Court’s test for determining whether an employment practice constitutes sex discrimination. This approach, which we call the “comparative test,” determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different “but for that person’s sex.” Manhart, 435 U.S. at 711, 98 S.Ct. 1370 (internal quotation marks omitted). To illustrate its application to sexual orientation, consider the facts of the recent Seventh Circuit case addressing a Title

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VII claim brought by Kimberly Hively, a lesbian professor who alleged that she was denied a promotion because of her sexual orientation. Hively, 853 F.3d at 341 (majority). Accepting that allegation as true at the motionto-dismiss stage, the Seventh Circuit compared Hively, a female professor attracted to women (who was denied a promotion), with a hypothetical scenario in which Hively was a male who was attracted to women (and received a promotion). Id. at 345. Under this scenario, the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination. Id.
The government,12 drawing from the dissent in Hively, argues that this is an improper comparison. According to this argument, rather than “hold[ing] everything constant except the plaintiff’s sex” the Hively majority’s comparison changed “two variables—the plaintiff’s sex and sexual orientation.” 853 F.3d at 366 (Sykes, J., dissenting). In other words, the Seventh Circuit compared a lesbian woman with a heterosexual man. As an initial matter, this observation helpfully illustrates that sexual orientation is a function of sex. In the comparison, changing Hively’s sex changed her sexual orientation. Case in point.
But the real issue raised by the government’s critique is the proper application of the comparative test. In the government’s view, the appropriate comparison is not between a woman attracted to women and a man attracted to women; it’s between a woman and a man, both of whom are attracted to people of the same sex. Determining which of these framings is correct requires understanding the purpose and operation of the comparative test. Although the Supreme Court has not elaborated on the role that the test plays in Title VII jurisprudence, based on how the Supreme Court has employed the test, we understand that its purpose is to determine when a trait other than sex is, in fact, a proxy for (or a function of) sex. To determine whether a trait is such a proxy, the test compares a female and a male *117 employee who both exhibit the trait at issue. In the comparison, the trait is the control, sex is the independent variable, and employee treatment is the dependent variable.
To understand how the test works in practice, consider Manhart. There, the Supreme Court evaluated the Los Angeles Department of Water’s requirement that female employees make larger pension contributions than their male colleagues. 435 U.S. at 704–05, 98 S.Ct. 1370. This requirement was based on mortality data indicating that

female employees outlived male employees by several years and the employer insisted that “the different contributions exacted from men and women were based on the factor of longevity rather than sex.” Id. at 712, 98 S.Ct. 1370. Applying “the simple test of whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different,” the Court compared a woman and a man, both of whose pension contributions were based on life expectancy, and asked whether they were required to make different contributions. Id. at 711, 98 S.Ct. 1370 (internal quotation marks omitted). Importantly, because life expectancy is a sex-dependent trait, changing the sex of the employee (the independent variable) necessarily affected the employee’s life expectancy and thereby changed how they were impacted by the pension policy (the dependent variable). After identifying this correlation, the Court concluded that life expectancy was simply a proxy for sex and therefore the pension policy constituted discrimination “because of ... sex.” Id.
We can also look to the Supreme Court’s decision in Price Waterhouse. Although that case did not quote Manhart’s “but for” language, it involved a similar inquiry: in determining whether discrimination based on particular traits was rooted in sex stereotypes, the Supreme Court asked whether a female accountant would have been denied a promotion based on her aggressiveness and failure to wear jewelry and makeup “if she had been a man.” 490 U.S. at 258, 109 S.Ct. 1775. Otherwise said, the Supreme Court compared a man and a woman who exhibited the plaintiff’s traits and asked whether they would have experienced different employment outcomes. Notably, being aggressive and not wearing jewelry or makeup is consistent with gender stereotypes for men. Therefore, by changing the plaintiff’s gender, the Supreme Court also changed the plaintiff’s gender non-conformity.
The government’s proposed approach to Hively, which would compare a woman attracted to people of the same sex with a man attracted to people of the same sex, adopts the wrong framing. To understand why this is incorrect, consider the mismatch between the facts in the government’s comparison and the allegation at issue: Hively did not allege that her employer discriminated against women with same-sex attraction but not men with same-sex attraction. If she had, that would be classic sex discrimination against a subset of women. See Lead Dissent at 152 n.20. Instead, Hively claimed that her employer discriminated on the basis of sexual orientation. To address that allegation, the proper question is whether sex is a “motivating factor” in sexual orientation discrimination, see 42 U.S.C. § 2000e-2(m), or, said more

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simply, whether sexual orientation is a function of sex.13 But, contrary *118 to the government’s suggestion, this question cannot be answered by comparing two people with the same sexual orientation. That would be equivalent to comparing the gender non-conforming female plaintiff in Price Waterhouse to a gender nonconforming man; such a comparison would not illustrate whether a particular stereotype is sex dependent but only whether the employer discriminates against gender nonconformity in only one gender. Instead, just as Price Waterhouse compared a gender non-conforming woman to a gender conforming man, both of whom were aggressive and did not wear makeup or jewelry, the Hively court properly determined that sexual orientation is sex dependent by comparing a woman and a man with two different sexual orientations, both of whom were attracted to women.
The government further counters that the comparative test produces false positives in instances where it is permissible to impose different terms of employment on men and women because “the sexes are not similarly situated.” Gov. Br. at 16–17 (quoting Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 469, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) ).14 For example, the government posits that courts have rejected the comparative test when assessing employer policies regarding sex-segregated bathrooms and different grooming standards for men and women. Similarly, the lead dissent insists that our holding would preclude such policies if “[t]aken to its logical conclusion.” Lead Dissent at 151. Both criticisms are misplaced.

1252 (8th Cir. 1975) (concluding that “slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities”); Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (same); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336–37 (D.C. Cir. 1973) (holding that hair-length regulations, like “the requirement that men and women use separate toilet facilities[,] ... do not pose distinct employment disadvantages for one sex”).16 Whether sex-specific bathroom and grooming policies impose disadvantageous terms or conditions is a separate question from this Court’s inquiry into whether sexual orientation discrimination is “because of ... sex,” and has no bearing on the efficacy of the comparative test.
Having addressed the proper application of the comparative test, we conclude that the law is clear: To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently “but for” his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.17

A plaintiff alleging disparate treatment based on sex in violation of Title VII must show two things: (1) that he was “discriminate[d] against ... with respect to his compensation, terms, conditions, or privileges of employment,” and (2) that the employer discriminated “because of ... sex.” 42 U.S.C. § 2000e-2(a)(1). The comparative test addresses the second prong of that test; it reveals whether an employment practice is “because of ... sex” by asking whether the trait at issue (life expectancy, sexual orientation, etc.) is a function of sex. In contrast, courts that have addressed challenges to the sex-specific employment practices identified by the government have readily acknowledged that the policies are based on sex and instead focused their analysis on the first prong: whether the policies impose “disadvantageous terms or conditions of employment.”15 *119 Harris, 510 U.S. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring); see, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1109–10 (9th Cir. 2006) (upholding grooming standards that do not “place[ ] a greater burden on one gender than the other”); Knott v. Mo. Pac. R.R. Co., 527 F.2d 1249,
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2. Gender Stereotyping
Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provides yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination. Specifically, this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.
Since 1978, the Supreme Court has recognized that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” because Title VII “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Manhart, 435 U.S. at 707 & n.13, 98 S.Ct. 1370. This is true of stereotypes about both how the sexes are and how they should be. Price Waterhouse, 490 U.S. at 250, 109 S.Ct. 1775 (“[A]n employer who acts on the basis of a belief that a woman cannot ... or must not [possess certain traits] has acted

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*120 on the basis of gender.”); see also Zachary R. Herz, Note, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396, 405–06 (2014) (distinguishing between ascriptive stereotypes that “treat[ ] a large group of people alike” and prescriptive stereotypes that speak to how members of a group should be).
In Price Waterhouse, the Supreme Court concluded that adverse employment actions taken based on the belief that a female accountant should walk, talk, and dress femininely constituted impermissible sex discrimination. See 490 U.S. at 250–52, 109 S.Ct. 1775 (plurality); see also id. at 259, 109 S.Ct. 1775 (White, J., concurring in the judgment); id. at 272–73, 109 S.Ct. 1775 (O’Connor, J., concurring in the judgment).18 Similarly, Manhart stands for the proposition that “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” and held that female employees could not, by virtue of their status as women, be discriminated against based on the gender stereotype that women generally outlive men. 435 U.S. at 707–08, 711, 98 S.Ct. 1370. Under these principles, employees who experience adverse employment actions as a result of their employer’s generalizations about members of their sex, id. at 708, 98 S.Ct. 1370, or “as a result of their employer’s animus toward their exhibition of behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII,” Dawson, 398 F.3d at 218.
Accepting that sex stereotyping violates Title VII, the “crucial question” is “[w]hat constitutes a gender-based stereotype.” Back, 365 F.3d at 119–20. As demonstrated by Price Waterhouse, one way to answer this question is to ask whether the employer who evaluated the plaintiff in “sex-based terms would have criticized her as sharply (or criticized her at all) if she had been a man.” 490 U.S. at 258, 109 S.Ct. 1775. Similarly, this Court has observed that the question of whether there has been improper reliance on sex stereotypes can sometimes be answered by considering whether the behavior or trait at issue would have been viewed more or less favorably if the employee were of a different sex. See Back, 365 F.3d at 120 n.10 (quoting Doe ex rel. Doe v. City of Belleville, 119 F.3d 563, 581–82 (7th Cir. 1997) ).19
Applying Price Waterhouse’s reasoning to sexual orientation, we conclude that when, for example, “an employer ... acts on the basis of a belief that [men] cannot be [attracted to men], or that [they] must not be,” but takes no such action against women who are attracted to men, *121 the employer “has acted on the basis of gender.” Cf. 490 U.S. at 250, 109 S.Ct. 1775.20 This

conclusion is consistent with Hively’s holding that samesex orientation “represents the ultimate case of failure to conform” to gender stereotypes, 853 F.3d at 346 (majority), and aligns with numerous district courts’ observation that “stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. ... The gender stereotype at work here is that ‘real’ men should date women, and not other men,” Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002); see also, e.g., Boutillier v. Hartford Pub. Sch., 221 F.Supp.3d 255, 269 (D. Conn. 2016); Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1160 (C.D. Cal. 2015); Terveer v. Billington, 34 F.Supp.3d 100, 116 (D.D.C. 2014); Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1224 (D. Or. 2002).21
This conclusion is further reinforced by the unworkability of Simonton and Dawson’s holding that sexual orientation discrimination is not a product of sex stereotypes. Lower courts operating under this standard have long labored to distinguish between gender stereotypes that support an inference of impermissible sex discrimination and those that are indicative of sexual orientation discrimination. See generally Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698, 705–09 (7th Cir. 2016) (panel op.) (collecting cases), vacated by Hively, 853 F.3d 339 (en banc). Under this approach “a woman might have a Title VII claim if she was harassed or fired for being perceived as too ‘macho’ but not if she was harassed or fired for being perceived as a lesbian.” Fabian v. Hosp. of Cent. Conn., 172 F.Supp.3d 509, 524 n.8 (D. Conn. 2016). In parsing the evidence, courts have resorted to lexical bean counting, comparing the relative frequency of epithets such as “ass wipe,” “fag,” “gay,” “queer,” “real man,” and “fem” to determine whether discrimination is based on sex or sexual orientation. See, e.g., Kay v. Indep. Blue Cross, 142 Fed.Appx. 48, 51 (3d Cir. 2005). Claims of gender discrimination have been “especially difficult for gay plaintiffs to bring,” Maroney v. Waterbury Hosp., No. 3:10-CV-1415, 2011 WL 1085633, at *2 n.2 (D. Conn. Mar. 18, 2011), because references to a plaintiff’s sexual orientation are generally excluded from the evidence, Boutillier, 221 F.Supp.3d at 269, or permitted only when “the harassment consists of homophobic *122 slurs directed at a heterosexual,” Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 169 F.Supp.3d 320, 332–33 (N.D.N.Y. 2016) (emphasis added). But see Franchina, 881 F.3d at 53 (holding that jury may consider evidence referencing plaintiff’s sexual orientation for purposes of a sex discrimination claim). Unsurprisingly, many courts have found these distinctions unworkable, admitting that the doctrine is “illogical,” Philpott v. New York, 252 F.Supp.3d 313, 316 (S.D.N.Y. 2017), and produces “untenable results,” Boutillier, 221 F.Supp.3d at

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270. In the face of this pervasive confusion, we are persuaded that “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist save as a lingering and faulty judicial construct.” Videckis, 150 F.Supp.3d at 1159 (quoting Prowel, 579 F.3d at 291). We now conclude that sexual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination.
The government resists this conclusion, insisting that negative views of those attracted to members of the same sex may not be based on views about gender at all, but may be rooted in “moral beliefs about sexual, marital and familial relationships.” Gov. Br. at 19. But this argument merely begs the question by assuming that moral beliefs about sexual orientation can be dissociated from beliefs about sex. Because sexual orientation is a function of sex, this is simply impossible. Beliefs about sexual orientation necessarily take sex into consideration and, by extension, moral beliefs about sexual orientation are necessarily predicated, in some degree, on sex. For this reason, it makes no difference that the employer may not believe that its actions are based in sex. In Manhart, for example, the employer claimed its policy was based on longevity, not sex, but the Supreme Court concluded that, irrespective of the employer’s belief, the longevity metric was predicated on assumptions about sex. 435 U.S. at 712–13, 98 S.Ct. 1370. The same can be said of sexual orientation discrimination.
To be clear, our conclusion that moral beliefs regarding sexual orientation are based on sex does not presuppose that those beliefs are necessarily animated by an invidious or evil motive. For purposes of Title VII, any belief that depends, even in part, on sex, is an impermissible basis for employment decisions.22 This is true irrespective of whether the belief is grounded in fact, as in Manhart, id. at 704–05, 711, 98 S.Ct. 1370, or lacks “a malevolent motive,” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 199, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). Indeed, in Johnson Controls, the Supreme Court concluded that an employer violated Title VII by excluding fertile women from jobs that involved exposure to high levels of lead, which can adversely affect the development of a fetus. 499 U.S. at 190, 200, 111 S.Ct. 1196. As the Court emphasized, “[t]he beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination” under Title VII. Id. at 200, 111 S.Ct. 1196. Here, because sexual orientation is a function of sex, beliefs about sexual orientation, including moral ones, are, in some measure, “because of ... sex.”
12

*123 The government responds that, even if discrimination based on sexual orientation reflects a sex stereotype, it is not barred by Price Waterhouse because it treats women no worse than men.23 Gov. Br. at 19–20. We believe the government has it backwards. Price Waterhouse, read in conjunction with Oncale, stands for the proposition that employers may not discriminate against women or men who fail to conform to conventional gender norms. See Oncale, 523 U.S. at 78, 118 S.Ct. 998 (holding that Title VII “protects men as well as women”); Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775 (“We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”). It follows that the employer in Price Waterhouse could not have defended itself by claiming that it fired a gender-non-conforming man as well as a gender-non-conforming woman any more than it could persuasively argue that two wrongs make a right. To the contrary, this claim would merely be an admission that the employer has doubly violated Title VII by using gender stereotypes to discriminate against both men and women. By the same token, an employer who discriminates against employees based on assumptions about the gender to which the employees can or should be attracted has engaged in sex-discrimination irrespective of whether the employer uses a double-edged sword that cuts both men and women.24
*124 3. Associational Discrimination
The conclusion that sexual orientation discrimination is a subset of sex discrimination is further reinforced by viewing this issue through the lens of associational discrimination. Consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer’s decision is predicated on opposition to romantic association between particular sexes. For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee’s own sex. See Baldwin, 2015 WL 4397641, at *6.
This Court recognized associational discrimination as a violation of Title VII in Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir. 2008), a case involving allegations of racial discrimination. Holcomb, a white man, alleged that he was fired from his job as the assistant coach of a

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college basketball team because his employer disapproved of his marriage to a black woman. This Court concluded that Holcomb had stated a viable claim, holding that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” Id. at 138. Although the Court considered the argument that the alleged discrimination was based on the race of Holcomb’s wife rather than his own, it ultimately concluded that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Id. at 139; see also Whitney v. Greater N.Y. Corp. of Seventh–Day Adventists, 401 F.Supp. 1363, 1366 (S.D.N.Y. 1975) (“[I]f [plaintiff] was discharged because, as alleged, the defendant disapproved of a social relationship between a white woman and a black man, the plaintiff’s race was as much a factor in the decision to fire her as that of her friend.”).
Applying similar reasoning, the Fifth, Sixth, and Eleventh Circuits have reached the same conclusion in racial discrimination cases. See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994–95 (6th Cir. 1999) (holding that plaintiff had alleged discrimination where the employer was “charged with reacting adversely to [plaintiff] because of [his] race in relation to the race of his daughter”); Deffenbaugh– Williams v. Wal–Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998) (“[A] reasonable juror could find that [plaintiff] was discriminated against because of her race (white), if that discrimination was premised on the fact that she, a white person, had a relationship with a black person.”), vacated in part on other grounds by Williams v. Wal–Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”). Other circuits have indicated that associational discrimination extends beyond race to all of Title VII’s protected classes. See Hively, 853 F.3d at 349 (majority) (holding that Title VII prohibits associational discrimination on the basis of race as well as color, national origin, religion, and sex); Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009) (stating, in the context of a race discrimination case, that “Title VII protects individuals *125 who, though not members of a protected class, are victims of discriminatory animus toward protected third persons with whom the individuals associate” (internal quotation marks omitted) (emphasis added) ).25 We agree and we now hold that the prohibition on associational discrimination applies with equal force to all the classes

protected by Title VII, including sex.
This conclusion is consistent with the text of Title VII, which “on its face treats each of the enumerated categories exactly the same” such that “principles ... announce[d]” with respect to sex discrimination “apply with equal force to discrimination based on race, religion, or national origin,” and vice versa.26 Price Waterhouse, 490 U.S. at 243 n.9, 109 S.Ct. 1775. It also accords with the Supreme Court’s application of theories of discrimination developed in Title VII race discrimination cases to claims involving discrimination based on sex. See Meritor, 477 U.S. at 63–67, 106 S.Ct. 2399 (concluding that claims of hostile work environment, a theory of discrimination developed in the context of race, were equally applicable in the context of sex); see also William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 349 (2017) (explaining that the 1972 amendments to Title VII “repeatedly equated the evils of sex discrimination with those of race discrimination”).
As was observed in Christiansen, “[p]utting aside romantic associations,” the notion that employees should not be discriminated against because of their association with persons of a particular sex “is not controversial.” 852 F.3d at 204 (Katzmann, C.J., concurring). If an employer disapproves of close friendships among persons of opposite sexes and fires a female employee because she has male friends, the employee has been discriminated against because of her own sex. “Once we accept this premise, it makes little sense to carve out same-sex [romantic] relationships as an association to which these protections do not apply.” Id. Applying the reasoning of Holcomb, if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because “the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him.” Baldwin, 2015 WL 4397641, at *6.
In this scenario, it is no defense that an employer requires both men and women to refrain from same-sex attraction or relationships. In Holcomb, for example, the white plaintiff was fired for his marriage to a black woman. See 521 F.3d at 138. If the facts of Holcomb had also involved a black employee fired for his marriage to a white woman, would we have said that because both the white employee *126 and black employee were fired for their marriages to people of different races, there was no discrimination “because of ... race”? Of course not.27 It is unthinkable that “tak[ing] action against an employee

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because of the employee’s association with a person of another race,” id. at 139, would be excused because two employees of different races were both victims of an antimiscegenation workplace policy. The same is true of discrimination based on sexual orientation.28
Although this conclusion can rest on its own merits, it is reinforced by the reasoning of Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In Loving, the Commonwealth of Virginia argued that antimiscegenation statutes did not violate the Equal Protection Clause because such statutes applied equally to white and black citizens. See id. at 7–8, 87 S.Ct. 1817. The Supreme Court disagreed, holding that “equal application” could not save the statute because it was based “upon distinctions drawn according to race.” Id. at 10–11, 87 S.Ct. 1817. Constitutional cases like Loving “can provide helpful guidance in [the] statutory context” of Title VII. Ricci v. DeStefano, 557 U.S. 557, 582, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); see also Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 949 (2002) (arguing that, in the constitutional context, “the Supreme Court developed the law of sex discrimination by means of an analogy between sex and race discrimination”). Accordingly, we find that Loving’s insight—that policies that distinguish according to protected characteristics cannot be saved by equal application—extends to association based on sex.
Certain amici supporting the defendants disagree, arguing that applying Holcomb and Loving to same-sex relationships is not warranted because anti-miscegenation policies are motivated by racism, while sexual orientation discrimination is not rooted in sexism. Although these amici offer no empirical support for this contention, amici supporting Zarda cite research suggesting that sexual orientation discrimination has deep misogynistic roots. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994). But the Court need not resolve this dispute because the amici supporting defendants identify no cases indicating that the scope of Title VII’s protection against sex discrimination is limited to discrimination motivated by what would colloquially be described as sexism. To the contrary, *127 this approach is squarely foreclosed by the Supreme Court’s precedents. In Oncale, the Court explicitly rejected the argument that Title VII did not protect male employees from sexual harassment by male co-workers, holding that “Title VII’s prohibition on discrimination ‘because of ... sex’ protects men as well as women” and extends to instances where the “plaintiff and the defendant ... are of the same sex.” 523 U.S. at 78–79, 118 S.Ct. 998. This

male-on-male harassment is well-outside the bounds of what is traditionally conceptualized as sexism. Similarly, as we have discussed, in Manhart the Court invalidated a pension scheme that required female employees to contribute more than their male counterparts because women generally live longer than men. 435 U.S. at 711, 98 S.Ct. 1370. Again, the Court reached this conclusion notwithstanding the fact that some people might not describe this policy as sexist. By extension, even if sexual orientation discrimination does not evince conventional notions of sexism, this is not a legitimate basis for concluding that it does not constitute discrimination “because of ... sex.”29
The fallback position for those opposing the associational framework is that associational discrimination can be based only on acts—such as Holcomb’s act of getting married—whereas sexual orientation is a status. As an initial matter, the Supreme Court has rejected arguments that would treat acts as separate from status in the context of sexual orientation. In Lawrence v. Texas, the state argued that its “sodomy law [did] not discriminate against homosexual persons,” but “only against homosexual conduct.” 539 U.S. 558, 583, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (O’Connor, J., concurring). Justice O’Connor refuted this argument, reasoning that laws that target “homosexual conduct” are “an invitation to subject homosexual persons to discrimination.” Id. More recently, in a First Amendment case addressing whether a public university could require student organizations to be open to all students, a religious student organization claimed that it should be permitted to exclude anyone who engaged in “unrepentant homosexual conduct,” because such individuals were being excluded “on the basis of a conjunction of [their] conduct and [their] belief that the conduct is not wrong,” not because of their sexual orientation. Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 672, 689, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (internal quotation marks omitted). Drawing on Lawrence and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), a case brought under 42 U.S.C. § 1985(3), the Supreme Court rejected the invitation to treat discrimination based on acts as separate from discrimination based on status. Christian Legal Soc., 561 U.S. at 689, 130 S.Ct. 2971; see also Bray, 506 U.S. at 270, 113 S.Ct. 753 (rejecting the actstatus distinction by observing that “[a] tax on wearing yarmulkes is a tax on Jews”). Although amici’s argument inverts the previous defenses of policies targeting individuals attracted to persons of the same sex by arguing that Title VII’s prohibition of associational discrimination protects only acts, not status, their proposed distinction is equally unavailing.

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*128 More fundamentally, amici’s argument is an inaccurate characterization of associational discrimination. First, the source of the Title VII claim is not the employee’s associational act but rather the employer’s discrimination, which is motivated by “disapprov[al] of [a particular type of] association.” See Holcomb, 521 F.3d at 139; see also 42 U.S.C. § 2000e2(m) (asking whether the protected trait was “a motivating factor”). In addition, as it pertains to the employee, what is protected is not the employee’s act but rather the employee’s protected characteristic, which is a status. Holcomb, 521 F.3d at 139; Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 2522, 186 L.Ed.2d 503 (2013) (defining “status-based discrimination,” which is “prohibited by Title VII,” as “discrimination on the basis of race, color, religion, sex, or national origin”). Accordingly, associational discrimination is not limited to acts; instead, as with all other violations of Title VII, associational discrimination runs afoul of the statute by making the employee’s protected characteristic a motivating factor for an adverse employment action. See 42 U.S.C. § 2000e-2(m).30
In sum, we see no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex. Accordingly, we hold that sexual orientation discrimination, which is based on an employer’s opposition to association between particular sexes and thereby discriminates against an employee based on their own sex, constitutes discrimination “because of ... sex.” Therefore, it is no less repugnant to Title VII than anti-miscegenation policies.
C. Subsequent Legislative Developments
Although the conclusion that sexual orientation discrimination is a subset of sex discrimination follows naturally from existing Title VII doctrine, the amici supporting the defendants place substantial weight on subsequent legislative developments that they argue militate against interpreting “because of ... sex” to include sexual orientation discrimination.31 Having carefully considered each of amici’s arguments, we find them unpersuasive.
First, the government points to the Civil Rights Act of 1991, Pub. L. No. 102–166, 105 Stat. 1071 (1991), arguing that this amendment to Title VII ratified judicial decisions construing discrimination “because of ... sex” as
15

excluding sexual orientation discrimination. Among other things, the 1991 amendment expressly “codif[ied] the concepts of ‘business necessity’ and ‘job related’ ” as articulated in Griggs, 401 U.S. at 429–31, 91 S.Ct. 849, and rejected the Supreme Court’s prior decision on that topic in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). See Civil Rights Act of *129 1991 §§ 2(2), 3(2), 105 Stat. at 1071. According to the government, this amendment also implicitly ratified the decisions of the four courts of appeals that had, as of 1991, held that Title VII does not bar discrimination based on sexual orientation.
In advancing this argument, the government attempts to analogize the 1991 amendment to the Supreme Court’s recent discussion of an amendment to the Fair Housing Act (“FHA”). In Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the Court considered whether disparate-impact claims were cognizable under the FHA by looking to, inter alia, a 1988 amendment to the statute. ––– U.S. ––––, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015). The Court found it relevant that “all nine Courts of Appeals to have addressed the question” by 1988 “had concluded [that] the [FHA] encompassed disparate-impact claims.” Id. at 2519. When concluding that Congress had implicitly ratified these holdings, the Court considered (1) the amendment’s legislative history, which confirmed that “Congress was aware of this unanimous precedent,” id., and (2) the fact that the precedent was directly relevant to the amendment, which “included three exemptions from liability that assume the existence of disparate-impact claims,” id. at 2520.
The statutory history of Title VII is markedly different. When we look at the 1991 amendment, we see no indication in the legislative history that Congress was aware of the circuit precedents identified by the government and, turning to the substance of the amendment, we have no reason to believe that the new provisions it enacted were in any way premised on or made assumptions about whether sexual orientation was protected by Title VII. It is also noteworthy that, when the statute was amended in 1991, only three of the thirteen courts of appeals had considered whether Title VII prohibited sexual orientation discrimination.32 See Williamson, 876 F.2d 69; DeSantis v. PT&T Co., 608 F.2d 327 (9th Cir. 1979); Blum, 597 F.2d 936. Mindful of this important context, this is not an instance where we can conclude that Congress was aware of, much less relied upon, the handful of Title VII cases discussing sexual orientation. Indeed, the inference suggested by the government is particularly suspect given that the text of the 1991 amendment emphasized that it was

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“respond[ing] to Supreme Court decisions by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” Civil Rights Act of 1991 §§ 2(2), 3(2), 105 Stat. at 1071 (emphasis added). For these reasons, we do not consider the 1991 amendment to have ratified the interpretation of Title VII as excluding sexual orientation discrimination.
Next, certain amici argue that by not enacting legislation expressly prohibiting sexual orientation discrimination in the workplace Congress has implicitly ratified decisions holding that sexual orientation was not covered by Title VII. According to the government’s amicus brief, almost every Congress since 1974 has considered *130 such legislation but none of these bills became law.
This theory of ratification by silence is in direct tension with the Supreme Court’s admonition that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress,” particularly when “it concerns, as it does here, a proposal that does not become law.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (citations and internal quotation marks omitted). This is because “[i]t is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of [a particular] statutory interpretation.” Patterson v. McLean Credit Union, 491 (U.S. 164, 175 n.1, 109 S.Ct. 2363, 105 L.Ed.2d 132 1989) (internal quotation marks omitted). After all, “[t]here are many reasons Congress might not act on a decision ..., and most of them have nothing at all to do with Congress’ desire to preserve the decision.” Michigan v. Bay Mills Indian Cmty., ––– U.S. ––––, 134 S.Ct. 2024, 2052, 188 L.Ed.2d 1071 (2014) (Thomas, J., dissenting). For example, Congress may be unaware of or indifferent to the status quo, or it may be unable “to agree upon how to alter the status quo.” Johnson v. Transp. Agency, 480 U.S. 616, 672, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting). These concerns ring true here. We do not know why Congress did not act and we are thus unable to choose among the various inferences that could be drawn from Congress’s inaction on the bills identified by the government. See LTV Corp., 496 U.S. at 659, 110 S.Ct. 2668 (“Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” (internal quotation marks omitted) ). Accordingly, we decline to assign congressional silence a meaning it will not bear.
Drawing on the dissent in Hively, the government also argues that Congress considers sexual orientation

discrimination to be distinct from sex discrimination because it has expressly prohibited sexual orientation discrimination in certain statutes but not Title VII. See 853 F.3d at 363–64 (Sykes, J., dissenting). While it is true that Congress has sometimes used the terms “sex” and “sexual orientation” separately, this observation is entitled to minimal weight in the context of Title VII.
The presumptions that terms are used consistently and that differences in terminology denote differences in meaning have the greatest force when the terms are used in “the same act.” See Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007). By contrast, when drafting separate statutes, Congress is far less likely to use terms consistently, see Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 936 (2013), and these presumptions are entitled to less force where, as here, the government points to terms used in different statutes passed by different Congresses in different decades. See Violence Against Women Reauthorization Act of 2013, Pub L. No. 113-4, § 3(b)(4), 127 Stat. 54, 61 (2013); Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 5306(a)(3), 124 Stat. 119, 626 (2010); Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, §§ 4704(a)(1)(C), § 4704(a), 123 Stat. 2835, 2837, 2839 (2009); Higher Education Amendments of 1998, Pub. L. No. 105-244, § 486(e)(1)(A), 112 Stat. 1581, 1743 (1998).
*131 Moreover, insofar as the government argues that mention of “sexual orientation” elsewhere in the U.S. Code is evidence that “because of ... sex” should not be interpreted to include “sexual orientation,” our race discrimination jurisprudence demonstrates that this is not dispositive. We have held that Title VII’s prohibition on race discrimination encompasses discrimination on the basis of ethnicity, see Vill. of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016), notwithstanding the fact that other federal statutes now enumerate race and ethnicity separately, see, e.g., 20 U.S.C. § 1092(f)(1)(F)(ii); 42 U.S.C. § 294e-1(b)(2). The same can be said of sex and sexual orientation because discrimination based on the former encompasses the latter.
In sum, nothing in the subsequent legislative history identified by the amici calls into question our conclusion that sexual orientation discrimination is a subset of sex discrimination and is thereby barred by Title VII.

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III. Summary
Since 1964, the legal framework for evaluating Title VII claims has evolved substantially.33 Under Manhart, traits that operate as a proxy for sex are an impermissible basis for disparate treatment of men and women. Under Price Waterhouse, discrimination on the basis of sex stereotypes is prohibited. Under Holcomb, building on Loving, it is unlawful to discriminate on the basis of an employee’s association with persons of another race. Applying these precedents to sexual orientation discrimination, it is clear that there is “no justification in the statutory language ... for a categorical rule excluding” such claims from the reach of Title VII. Oncale, 523 U.S. at 80, 118 S.Ct. 998; see also Baldwin, 2015 WL 4397641, at *9 (“Interpreting the sex discrimination prohibition of Title VII to exclude coverage of lesbian, gay, or bisexual individuals who have experienced discrimination on the basis of sex inserts a limitation into the text that Congress has not included.”).
Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. 42 U.S.C. § 2000e-2(m). As explained above, sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex. Each of these three perspectives is sufficient to support this Court’s conclusion and together they amply demonstrate that sexual orientation *132 discrimination is a form of sex discrimination.
Although sexual orientation discrimination is “assuredly not the principal evil that Congress was concerned with when it enacted Title VII,” “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Oncale, 523 U.S. at 80, 118 S.Ct. 998. In the context of Title VII, the statutory prohibition extends to all discrimination “because of ... sex” and sexual orientation discrimination is an actionable subset of sex discrimination. We overturn our prior precedents to
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the contrary to the extent they conflict with this ruling. See Simonton, 232 F.3d at 35; Dawson, 398 F.3d at 218– 20.
***
Zarda has alleged that, by “honestly referr[ing] to his sexual orientation,” he failed to “conform to the straight male macho stereotype.” J.A. 72. For this reason, he has alleged a claim of discrimination of the kind we now hold cognizable under Title VII. The district court held that there was sufficient evidence of sexual orientation discrimination to survive summary judgment on Zarda’s state law claims. Even though Zarda lost his state sexual orientation discrimination claim at trial, that result does not preclude him from prevailing on his federal claim because his state law claim was tried under “a higher standard of causation than required by Title VII.” Zarda, 855 F.3d at 81. Thus, we hold that Zarda is entitled to bring a Title VII claim for discrimination based on sexual orientation.
CONCLUSION
Based on the foregoing, we VACATE the district court’s judgment on the Title VII claim and REMAND for further proceedings consistent with this opinion. We AFFIRM the judgment of the district court in all other respects.
Dennis Jacobs, Circuit Judge, concurring:
I concur in Parts I and II.B.3 of the opinion of the Court (Associational Discrimination) and I therefore concur in the result. Mr. Zarda does have a sex discrimination claim under Title VII based on the allegation that he was fired because he was a man who had an intimate relationship with another man. I write separately because, of the several justifications advanced in that opinion, I am persuaded by one; and as to associational discrimination, the opinion of the Court says somewhat more than is necessary to justify it. Since a single justification is sufficient to support the result, I start with associational discrimination, and very briefly explain thereafter why the other grounds leave me unconvinced.

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I
Supreme Court law and our own precedents on race discrimination militate in favor of the conclusion that sex discrimination based on one’s choice of partner is an impermissible basis for discrimination under Title VII. This view is an extension of existing law, perhaps a cantilever, but not a leap.
First: this Circuit has already recognized associational discrimination as a Title VII violation. In Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008), we considered a claim of discrimination under Title VII by a white man who alleged that he was fired because of his marriage to a black woman. We held that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race ... The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, *133 the employee suffers discrimination because of the employee’s own race.” Id. at 139 (emphasis in original).
Second: the analogy to same-sex relationships is valid because Title VII “on its face treats each of the enumerated categories exactly the same”; thus principles announced in regard to sex discrimination “apply with equal force to discrimination based on race, religion, or national origin.” Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). And, presumably, vice versa.
Third: There is no reason I can see why associational discrimination based on sex would not encompass association between persons of the same sex. In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), a case in which a man alleged same-sex harassment, the Supreme Court stated that Title VII prohibits “ ‘discriminat[ion] ... because of ... sex’ ” and that Title VII “protects men as well as women.” Id. at 79–80, 118 S.Ct. 998.
This line of cases, taken together, demonstrates that discrimination based on same-sex relationships is discrimination cognizable under Title VII notwithstanding that the sexual relationship is homosexual.
Zarda’s complaint can be fairly read to allege discrimination based on his relationship with a person of the same sex. The allegation is analogous to the claim in
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Holcomb, in which a person of one race was discriminated against on the basis of race because he consorted with a person of a different race. In each instance, the basis for discrimination is disapproval and prejudice as to who is permitted to consort with whom, and the common feature is the sorting: one is the mixing of race and the other is the matching of sex.
This outcome is easy to analogize to Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). While Loving was an Equal Protection challenge to Virginia’s miscegenation law, the law was held unconstitutional because it impermissibly drew distinctions according to race. Id. at 10–11, 87 S.Ct. 1817. In the context of a person consorting with a person of the same sex, the distinction is similarly drawn according to sex, and is therefore unlawful under Title VII.
Amicus Mortara argues that race discrimination aroused by couples of different race is premised on animus against one of the races (based on the idea of white supremacy), and that discrimination against homosexuals is obviously not driven by animus against men or against women. But it cannot be that the protections of Title VII depend on particular races; there are a lot more than two races, and Title VII likewise protects persons who are multiracial. Mr. Mortara may identify analytical differences; but to persons who experience the racial discrimination, it is all one.
Mr. Mortara also argues that discrimination based on homosexual acts and relationships is analytically distinct from discrimination against homosexuals, who have a proclivity on which they may or may not act. Academics may seek to know whether discrimination is illegal if based on same-sex attraction itself: they have jurisdiction over interesting questions, and we do not. But the distinction is not decisive. See Christian Legal Soc. Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 689, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (“Our decisions have declined to distinguish between status and conduct in” the context of sexual orientation.). In any event, the distinction between act and attraction does not arise in this case because Mr. Zarda’s termination *134 was sparked by his avowal of a samesex relationship.
A ruling based on Mr. Zarda’s same-sex relationship resolves this appeal; good craft counsels that we go no further. Much of the rest of the Court’s opinion amounts to woke dicta.

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II
The opinion of the Court characterizes its definitional analysis as “the most natural reading of Title VII.” Maj. Op. at 112. Not really. “Sex,” which is used in series with “race” and “religion,” is one of the words least likely to fluctuate in meaning. I do not think I am breaking new ground in saying that the word “sex” as a personal characteristic refers to the male and female of the species. Nor can there be doubt that, when Title VII was drafted in 1964, “sex” drew the distinction between men and women. “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979).
In the opinion of the Court, the word “sex” undergoes modification and expansion. Thus the opinion reasons: “[l]ogically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” Maj. Op. at 113. It is undeniable that sexual orientation is a “function of sex” in the (unhelpful) sense that it cannot be defined or understood without reference to sex. But surely that is because it has to do with sex—as so many things do. Everything that cannot be understood without reference to sex does not amount to sex itself as a term in Title VII. So it seems to me that all of these arguments are circular as well as unnecessary.
III
The opinion of the Court relies in part on a comparator test, asking whether the employee would have been treated differently “but for” the employee’s sex. But the comparator test is an evidentiary technique, not a tool for textual interpretation. “[T]he ultimate issue” for a court to decide in a Title VII case “is the reason for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004). The opinion of the Court builds on the concept of homosexuality as a subset of sex, and this analysis thus merges in a fuzzy way with the definitional analysis. But when the comparator test is used for textual interpretation, it carries in train ramifications that are sweeping and unpredictable: think fitness tests for different

characteristics of men and women, not to mention restrooms.
IV
The opinion of the Court relies on the line of cases that bars discrimination based on sexual stereotype: the manifestation of it or the failure to conform to it. There are at least three reasons I am unpersuaded.
Anti-discrimination law should be explicable in terms of evident fairness and justice, whereas the analysis employed in the opinion of the Court is certain to be baffling to the populace.
The Opinion posits that heterosexuality is just another sexual convention, bias, or stereotype—like pants and skirts, or hairdos. This is the most arresting notion in the opinion of the Court. Stereotypes are generalizations that are usually unfair or defective. Heterosexuality and homosexuality are both traits that are innate and true, not stereotypes of anything else.
*135 If this case did involve discrimination on the basis of sexual stereotype, it would have been remanded to the District Court on that basis, as was done in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017) (per curiam). The reason it could not be remanded on that basis is that the record does not associate Mr. Zarda with any sexual stereotyping. The case arises from his verbal disclosure of his sexual orientation during his employment as a skydiving instructor, and that is virtually all we know about him. It should not be surprising that a person of any particular sexual orientation would earn a living jumping out of airplanes; but Mr. Zarda cannot fairly be described as evoking somebody’s sexual stereotype of homosexual men. So this case does not present the (settled) issue of sexual stereotype, which I think is the very reason we had to go in banc in order to decide this case. As was made clear as recently as March 2017, “being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.” Id. at 201.
José A. Cabranes, Circuit Judge, concurring in the

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judgment:
I concur only in the judgment of the Court. It will take the courts years to sort out how each of the theories presented by the majority applies to other Title VII protected classes: “race, color, religion, ... [and] national origin.” 42 U.S.C. § 2000e-2(a)(1).
This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of ... sex.” Id. Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.
That should be the end of the analysis.1
Sack, Circuit Judge, concurring in the judgment, and in parts I (Jurisdiction), II.A (The Scope of Title VII), II:B.3 (Associational Discrimination), and II:C (Subsequent Legislative Developments) of the opinion for the Court.
We decide this appeal in the context of something of a revolution1 in American law respecting gender and sex. It appears to reflect, inter alia, many Americans’ evolving regard for and social acceptance of gay and lesbian persons. We are now called upon to address questions dealing directly with sex, sexual behavior, and sexual taboos, a discussion fraught with moral, religious, political, psychological, and other highly charged issues. For those reasons (among others), I think it is in the best interests of us all to tread carefully; to say no more than we must; to decide no more than is necessary to resolve this appeal. This is not for fear of offending, but for fear of the possible consequences of being mistaken in one unnecessary aspect or another of our decision.
In my view, the law of this Circuit governing what is referred to in the majority opinion as “associational discrimination”—discrimination against a person because of his or her association with another—is unsettled. What was embraced by this Court in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) (holding, by implication, that associational discrimination on the basis of sex is not cognizable under Title VII), *136 seems to have both been overtaken by, and to be inconsistent with, our later panel decision in Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) (holding directly that associational discrimination on account of race is unlawful under Title VII).2 Choosing between the two approaches, as I think we must, I agree with the majority that Holcomb is right
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and that Simonton is therefore wrong.3 It is principally on that basis that I concur in the judgment of the Court.
My declination to join other parts of the majority opinion does not signal my disagreement with them. Rather, inasmuch as, in my view, this appeal can be decided on the simpler and less fraught theory of associational discrimination, I think it best to stop there without then considering other possible bases for our judgment.
Raymond J. Lohier, Jr., Circuit Judge, concurring:
I agree with the majority opinion that there is no reasonable way to disentangle sex from sexual orientation in interpreting the plain meaning of the words “because of ... sex.” The first term clearly subsumes the second, just as race subsumes ethnicity.1 Oral Arg. Tr. at 53:5–6 (Government conceding that “ethnicity can be viewed as a subset of race”). From this central holding, the majority opinion explores the comparative approach, the stereotyping rationale, and the associational discrimination rationale to help determine “when a trait other than sex is ... a proxy for (or function of) sex.” Maj. Op. at 116. But in my view, these rationales merely reflect nonexclusive “evidentiary technique[s],” Jacobs, J., Concurring Op. at 134, frameworks, or ways to determine whether sex is a motivating factor in a given case, rather than interpretive tools that apply necessarily across all Title VII cases. Zarda himself has described these three rationales as “evidentiary theories” or “routes.” Oral Arg. Tr. at 4:17–18. On this understanding, I join the majority opinion as to Parts II.A and II.B.1.a, which reflect the textualist’s approach, and join the remaining parts of the opinion only insofar as they can be said to apply to Zarda’s particular case.
A word about the dissents. My dissenting colleagues focus on what they variously describe as the “ordinary, contemporary, common meaning” of the words “because of ... sex,” Lynch, J., Dissenting Op. at 144 n.8; Livingston, J., Dissenting Op. at 167, or the “public meaning of [those] words adopted by Congress in light of the social problem it was addressing when it chose those words,” Lynch, J., Dissenting Op. at 162. There are at least two problems with this position. First, as the majority opinion points out, cabining the *137 words in this way makes little or no sense of Oncale or, for that matter, Price Waterhouse. See Maj. Op. at 113–14. Second, their hunt for the “contemporary” “public” meaning of the statute in this case seems to me little more than a roundabout search for legislative history. Judge Lynch’s laudable call (either as a way to divine

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congressional intent or as an interpretive check on the plain text approach) to consider what the legislature would have decided if the issue had occurred to the legislators at the time of enactment is, unfortunately, no longer an interpretive option of first resort. Time and time again, the Supreme Court has told us that the cart of legislative history is pulled by the plain text, not the other way around. The text here pulls in one direction, namely, that sex includes sexual orientation.
Gerard E. Lynch, Circuit Judge, with whom Judge Livingston joins as to Parts I, II, and III, dissenting:
Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day—and I hope that day comes soon—I will have that pleasure.
I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half century ago—until I actually woke up and realized that I must have been still asleep and dreaming. Because we all know that Congress did no such thing.
I
Of course, today’s majority does not contend that Congress literally prohibited sexual orientation discrimination in 1964. It is worth remembering the historical context of that time to understand why any such contention would be indefensible.
The Civil Rights Act as a whole was primarily a product of the movement for equality for African–Americans. It grew out of the demands of that movement, and was opposed by segregationist white members of Congress who opposed racial equality. Although the bill, even before it included a prohibition against sex discrimination, went beyond race to prohibit discrimination based on religion and national origin, there is no question that it would not have been under consideration at all but for the national effort to reckon to some degree with America’s

heritage of race-based slavery and government-enforced segregation.
It is perhaps difficult for people not then alive to understand that before the Civil Rights Act of 1964 became law, an employer could post a sign saying “Help Wanted; No Negroes Need Apply” without violating any federal law—and many employers did. Even the original House bill, introduced with the support of President Kennedy’s Administration in 1963, did not prohibit racial discrimination by private employers. Language prohibiting employment discrimination by private employers on the grounds of “race, color, religion or national origin” was added later by a House subcommittee. See Francis J. Vaas, Title VII: Legislative History, 7 B.C. Indus. & Comm. L. Rev. 431, 434–35 (1966); Chuck Henson, Title VII Works—That’s Why We Don’t Like It, 2 U. Miami Race & Soc. Just. L. Rev. 41, 62–63, 64 n.103 (2012).
Movement on the bill was slow. It was only after the March on Washington in the summer of 1963, the assassination of President Kennedy in November of that year, and President Johnson’s strong support for a civil rights bill that prohibited racial discrimination in employment, that the legislation made progress in Congress. Todd. *138 S. Purdum, An Idea Whose Time Has Come 111–13, 151 (2014). But the private employment discrimination provision, like other sections of the bill prohibiting racial discrimination in public accommodations and federally funded programs, was openly and bitterly opposed by a large contingent of southern members of Congress. See Louis Menand, The Sex Amendment, The New Yorker (July 21, 2014), http://www.newyorker.com/magazine/2014/07/21/sexamendment. Its passage was by no means assured when the floor debates in the House began.
From the moment President Kennedy proposed the Civil Rights Act in 1963, women’s rights groups, with the support of some members of Congress, had urged that sex discrimination be included as a target of the legislation. Purdum, supra, at 196. The movements in the United States for gender and racial equality have not always marched in tandem—although there was some overlap between abolitionists and supporters of women’s suffrage, suffragists often relied on the racially offensive argument that it was outrageous that white women could not vote when black men could.1 But by the 1960s, many feminist advocates consciously adopted arguments parallel to those of the civil rights movement, and there was growing recognition that the two causes were linked in fundamental ways.2

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Women’s rights groups had been arguing for laws prohibiting sex discrimination since at least World War II, and had been gaining recognition for the agenda of the women’s rights movement in other arenas. In addition to supporting (at least rhetorically) civil rights for African– Americans, President Kennedy had taken tentative steps towards support of women’s rights as well. In December 1961, he created the President’s Commission on the Status of Women, chaired until her death by Eleanor Roosevelt. Exec. Order No. 10980, 26 Fed. Reg. 12,059 (Dec. 14, 1961). Among *139 other goals, the Commission was charged with developing recommendations for “overcoming discriminations in ... employment on the basis of sex,” and suggesting “services which will enable women to continue their role [ ]as wives and mothers while making a maximum contribution to the world around them.” Id.
The Commission’s report highlighted the increasing role of women in the workplace, noting (in an era when the primacy of women’s role in child-rearing and homemaking was taken for granted) that even women with children generally spent no more than a decade or so of their lives engaged in full-time child care, allowing a significant portion of women’s lives to be dedicated to education and employment. American Women: Report of The President’s Commission on the Status of Women 6–7 (1963). Accordingly, the Commission advocated a variety of steps to improve women’s economic position. Id. at 6– 7, 10. While those recommendations did not include federal legislation prohibiting employment discrimination on the basis of sex, they did include a commitment to equal opportunity in employment by federal contractors and proposed such equality as a goal for private employers—as well as proposing other innovations, such as paid maternity leave and universal high-quality public child care, that have yet to become the law of the land. Id. at 20, 30, 43.
Nevertheless, the notion that women should be treated equally at work remained controversial. By 1964, only two states, Hawaii and Wisconsin, prohibited sex discrimination in employment. Purdum, supra, at 196. Although decades had passed since the Supreme Court announced in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908), that laws limiting the hours that women could work did not violate the Fourteenth Amendment, but rather were an appropriate accommodation for women’s fragile constitutions and more pressing maternal obligations, id. at 420–21, 28 S.Ct. 324, state laws “protecting” women from the rigors of the workplace remained commonplace. Purdum, supra, at 196; see also Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (upholding a law requiring

women, specifically, to opt in to jury service, in part because “woman is still regarded as the center of home and family life”).
Accordingly, when Representative Howard W. Smith of Virginia, a die-hard opponent of integration and federal legislation to enforce civil rights for African–Americans, proposed that “sex” be added to the prohibited grounds of discrimination in the Civil Rights Act, there was reason to suspect that his amendment was an intentional effort to render the Act so divisive and controversial that it would be impossible to pass. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (suggesting that the “sex amendment was the gambit of a congressman seeking to scuttle adoption of the Civil Rights Act”); Comment, Sex Discrimination in Employment, 35 Fordham L. Rev. 503, 504 n.16 (1967). That might not have been the case, however. Like those early suffragettes who were ambivalent about, or hostile to, racial equality, Smith also had a prior history of support for (presumably white) women’s equality. For example, he had been a longstanding supporter of a constitutional amendment guaranteeing equal rights to women. Purdum, supra, at 196; see also Gillian Thomas, Because of Sex 2 (2016).
Whatever Smith’s subjective motivations for proposing it, the amendment was adamantly opposed by many northern liberals on the ground that it would undermine support for the Act as a whole. Purdum, supra, at 197; Menand, supra. Indeed, the *140 New York Times ridiculed the amendment, suggesting that, among other alleged absurdities, it would require Radio City Music Hall to hire male Rockettes, and concluding that “it would have been better if Congress had just abolished sex itself.” Editorial, De–Sexing the Job Market, N.Y. Times, August 21, 1965.
But despite its contested origins, the adoption of the amendment prohibiting sex discrimination was not an accident or a stunt. Once the amendment was on the floor, it was aggressively championed by a coalition comprising most of the (few) women members of the House. Purdum, supra, at 197. Its subsequent adoption was consistent with a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance.
Discrimination against gay women and men, by contrast, was not on the table for public debate. In those dark, preStonewall days, same-sex sexual relations were criminalized in nearly all states. Only three years before the passage of Title VII, Illinois, under the influence of the American Law Institute’s proposed Model Penal Code, had become the first state to repeal laws prohibiting private consensual adult relations between members of

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the same sex. Salvatore J. Licata, The Homosexual Rights Movement in the United States: A Traditionally Overlooked Area of American History, 6 J. Homosexuality 161, 171 (1981).
In addition to criminalization, gay men and women were stigmatized as suffering from mental illness. In 1964, both the American Psychiatric Association and the American Psychological Association regrettably classified homosexuality as a mental illness or disorder. As the Supreme Court recently explained, “[f]or much of the 20th century ... homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973.” Obergefell v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 2596, 192 L.Ed.2d 609 (2015), citing Position Statement on Homosexuality and Civil Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). It was not until two years later, in 1975, that the American Psychological Association followed suit and “adopted the same position [as the American Psychiatric Association], urging all mental health professionals to work to dispel the stigma of mental illness long associated with homosexual orientation.” Brief of Am. Psychological Ass’n as Amicus Curiae, Boy Scouts of Am. v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 2454, 147 L.Ed.2d 554 (2000), citing Am. Psychological Ass’n, Minutes of the Annual Meeting of the Council of Representatives, in 30 Am. Psychologist 620, 633 (1975). Because gay identity was viewed as a mental illness and was, in effect, defined by participation in a criminal act, the employment situation for openly gay Americans was bleak.
Consider the rules regarding employment by the federal government. Starting in the 1940s and continuing through the 1960s, thanks to a series of executive orders repealing long-standing discriminatory policies, federal employment opportunities for African–Americans began to open up significantly. See, e.g., Exec. Order No. 9980, 13 Fed. Reg. 4,311 (July 26, 1948) (prohibiting racial discrimination in civilian agencies); Exec. Order No. 10308, 16 Fed. Reg. 12,303 (December 3, 1951) (creating the Committee on Government Compliance to enforce the prohibition against racial discrimination by firms contracting with the government); Exec. Order No. 11114, 28 Fed. Reg. 6,485 (June 22, 1963) (extending prohibition against discrimination to all *141 federallyfunded construction projects). In sharp contrast, in 1953 President Eisenhower signed an executive order excluding persons guilty of “sexual perversion” from government employment. Exec. Order No. 10450, 18 Fed. Reg. 2,489 (April 27, 1953); see also Licata, supra, at 167–68.

During the same period, gay federal employees, or employees even suspected of being gay, were systematically hounded out of the service as “security risks” during Cold–War witchhunts. Licata, supra, at 167–68.
Civil rights and civil liberties organizations were largely silent.3 Licata, supra, at 168. In an influential book about the political plight of gay people, Edward Sagarin, writing under the pseudonym Donald Webster Cory, sharply criticized the silence of the bar. Donald Webster Cory, The Homosexual in America: A Subjective Approach (1951). For instance, he described the response to the abusive tactics used against members of the military discharged for homosexual conduct as follows: “And who raises a voice in protest against such discrimination? No one. Where was the American Civil Liberties Union? Nowhere.” Id. at 45. To the extent that civil rights organizations did begin to engage with gay rights during the early 1960s, they did so through the lens of sexual liberty, rather than equality, grouping the prohibition of laws against same-sex relations with prohibitions of birth control, abortion, and adultery.4 Even by the mid-1960s, the ACLU was identified by Newsweek as the only group “apart from the homophile organizations” that opposed laws criminalizing homosexual acts. Leigh Ann Wheeler, How Sex Became a Civil Liberty 155 (2013).
Given the criminalization of same-sex relationships and arbitrary and abusive police harassment of gay and lesbian citizens, nascent gay rights organizations had more urgent concerns than private employment discrimination. As late as 1968, four years after the passage of Title VII, the North American Conference of Homophile Organizations proposed a “Homosexual Bill of Rights” that demanded five fundamental rights: that private consensual sex between *142 adults not be a crime; that solicitation of sex acts not be prosecuted except on a complaint by someone other than an undercover officer; that sexual orientation not be a factor in granting security clearances, visas, or citizenship; that homosexuality not be a barrier to service in the military; and that sexual orientation not affect eligibility for employment with federal, state, or local governments. Licata, supra, at 177 (emphasis added). Those proposals, which pointedly did not include a ban on private sector employment discrimination against gays, evidently had little traction with many Americans at the time. The first state to prohibit employment discrimination on the basis of sexual orientation even in the public sector was Pennsylvania, by executive order of the governor, in 1975—more than a decade after the Civil Rights Act had become law. James W. Button et al., The Politics of Gay Rights at the Local and State Level, in The Politics of Gay

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Rights 269, 272 (Craig A. Rimmerman et al. eds., 2000). It was not until 1982 that Wisconsin became the first state to ban both public and private sector discrimination based on sexual orientation. Id. at 273; see also Linda A. Mooney et al., Understanding Social Problems 467 (6th ed. 2009). Massachusetts followed in 1989. Button et al., supra, at 273. Notably, as discussed more fully below, these states did so by explicit legislative action adding “sexual orientation” to pre-existing anti-discrimination laws that already prohibited discrimination based on sex; they did not purport to “recognize” that sexual orientation discrimination was merely an aspect of already-prohibited discrimination based on sex.
In light of that history, it is perhaps needless to say that there was no discussion of sexual orientation discrimination in the debates on Title VII of the Civil Rights Act. If some sexist legislators considered the inclusion of sex discrimination in the bill something of a joke, or perhaps a poison pill to make civil rights legislation even more controversial, evidently no one thought that adding sexual orientation to the list of forbidden categories was worth using even in that way. Nor did those who opposed the sex provision in Title VII include the possibility that prohibiting sex discrimination would also prevent sexual orientation discrimination in their parade of supposed horribles. When Representative Emanuel Celler of New York, floor manager for the Civil Rights Bill in the House, rose to oppose Representative Smith’s proposed amendment, he expressed concern that it would lead to such supposed travesties as the elimination of “protective” employment laws regulating working conditions for women, drafting women for military service, and revisions of rape and alimony laws. See 110 Cong. Rec. 2,577 (1964). He did not reference the prohibition of sexual orientation discrimination.5 The idea was nowhere on the horizon.
*143 II
I do not cite this sorry history of opposition to equality for African–Americans, women, and gay women and men, and of the biases prevailing a half-century ago, to argue that the private intentions and motivations of the members of Congress can trump the plain language or clear implications of a legislative enactment. (Still less, of course, do I endorse the views of those who opposed racial equality, ridiculed women’s rights, and persecuted people for their sexual orientation.) Although Chief Judge
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Katzmann has observed elsewhere that judicial warnings about relying on legislative history as an interpretive aid have been overstated, see Robert A. Katzmann, Judging Statutes 35–39 (2014), I agree with him, and with my other colleagues in the majority, that the implications of legislation flatly prohibiting sex discrimination in employment, duly enacted by Congress and signed by the President, cannot be cabined by citing the private prejudices or blind spots of those members of Congress who voted for it.6 The above history makes it obvious to me, however, that the majority misconceives the fundamental public meaning of the language of the Civil Rights Act. The problem sought to be remedied by adding “sex” to the prohibited bases of employment discrimination was the pervasive discrimination against women in the employment market, and the chosen remedy was to prohibit discrimination that adversely affected members of one sex or the other. By prohibiting discrimination against people based on their sex, it did not, and does not, prohibit discrimination against people because of their sexual orientation.
A
To start, the history of the overlapping movements for equality for blacks, women, and gays, and the differing pace of their progress, as outlined in the previous section, tells us something important about what the language of Title VII must have meant to any reasonable member of Congress, and indeed to any literate American, when it was passed—what Judge Sykes has called the “original public meaning” of the statute. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting) (emphasis added). That history tells us a great deal about why the legislators who constructed and voted for the Act used the specific language that they did.
The words used in legislation are used for a reason. Legislation is adopted in response to perceived social problems, and legislators adopt the language that they do to address a social evil or accomplish a desirable goal. The words of the statute take meaning from that purpose, and the principles it adopts must be read in light of the problem it was enacted to address. The words may indeed cut deeper than the legislators who voted for the statute fully understood or intended: as relevant here, a law aimed at producing gender equality in the workplace may require or prohibit employment *144 practices that the

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legislators who voted for it did not yet understand as obstacles to gender equality. Nevertheless, it remains a law aimed at gender inequality, and not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice, shared not only by some of those who opposed the rights of women and African–Americans, but also by some who believed in equal rights for women and people of color.
The history I have cited is not “legislative history” narrowly conceived. It cannot be disparaged as a matter of attempts by legislators or their aides to influence future judicial interpretation—in the direction of results they could not convince a majority to support in the overt language of a statute—by announcing to largely empty chambers, or inserting into obscure corners of committee reports, explanations of the intended or unintended legal implications of a bill. Nor am I seeking to infer the unexpressed wishes of all or a majority of the hundreds of legislators who voted for a bill without addressing a particular question of interpretation. Rather, I am concerned with what principles Congress committed the country to by enacting the words it chose.7 I contend that these principles can be illuminated by an understanding of the central public meaning of the language used in the statute at the time of its enactment.8
If the specifically legislative history of the “sex amendment” is relatively sparse in light of its adoption as a floor amendment, see Maj. Op. at 128 n.31, the broader political and social history of the prohibition *145 of sex discrimination in employment is plain for all to read. The history of the 20th century is, among other things, a history of increasing equality of men and women. Recent events remind us of how spotty that equality remains, and how inequality persists even with respect to the basic right of women to physical security and control of their own bodies. But the trend is clear, and it is particularly emphatic in the workplace.
That history makes it equally clear that the prohibition of discrimination “based on sex” was intended to secure the rights of women to equal protection in employment. Put simply, the addition of “sex” to a bill to prohibit employers from “discriminat[ing] against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, ... or national origin,” 42 U.S.C. § 2000e-2(a)(1), was intended to eliminate workplace inequalities that held women back from advancing in the economy, just as the original bill aimed to protect African–Americans and other racial, national, and religious minorities from similar discrimination. The

language of the Act itself would have been so understood not only by members of Congress, but by any politically engaged citizen deciding whether to urge his or her representatives to vote for it. As Judge Sykes noted in her dissent in the Seventh Circuit’s encounter with the same issue we face today, citing a 1960s dictionary, “In common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female; it does not also refer to sexual orientation.” Hively, 853 F.3d at 362–63 (Sykes, J., dissenting) (emphasis in original).9 On the verge of the adoption of historic legislation to address bigotry against African– Americans on the basis of race, women in effect stood up and said “us, too,” and Congress agreed.
The majority cites judicial interpretations of Title VII as prohibiting sexual harassment, and allowing hostile work environment claims, in an effort to argue that the expansion they are making simply follows in this line. Maj. Op. at 114, 115. But the fact that a prohibition on discrimination against members of one sex may have unanticipated consequences when courts are asked to consider carefully whether a given practice does, in fact, discriminate against members of one sex in the workplace does not support extending Title VII by judicial construction to protect an entirely different category of people. It is true that what counts as discrimination against members of one sex may not have been fully fleshed out in the minds of supporters of the legislation, but it is easy enough to illustrate how the language of a provision enacted to accomplish the goal of equal treatment of the sexes compels results that may not have been specifically intended by its enacters.
To begin with, just as laws prohibiting racial discrimination, adopted principally to address some of the festering national wrongs done to African–Americans, protect members of all races, including then-majority *146 white European–Americans, the prohibition of sex discrimination by its plain language protects men as well as women, whether or not anyone who voted on the bill specifically considered whether and under what circumstances men could be victims of gender-based discrimination. That is not an expansion of Title VII, but is a conclusion mandated by its text: Congress deliberately chose to protect women and minorities not by prohibiting discrimination against “African–Americans” or “Jews” or “women,” but by neutrally prohibiting discrimination against any individual “based on race, ... religion, [or] sex.” 42 U.S.C. § 2000e-2(a)(1). That choice of words is clearly intentional, and represents a commitment to a principle of equal treatment of races, religions, and sexes that is important, even if the primary intended beneficiaries of the legislation—those most in

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need of its protection—are members of the races, religions, and gender that have suffered the most from inequality in the past.
Other interpretations of the statute that may not have occurred to members of the overwhelmingly male Congress that adopted it seem equally straightforward. Perhaps it did not occur to some of those male members of Congress that sexual harassment of women in the workplace was a form of employment discrimination, or that Title VII was inconsistent with a “Mad Men” culture in the office.10 But although a few judges were slow to recognize this point, see, e.g., Barnes v. Train, No. 182873, 1974 WL 10628, at *1 (D.D.C. Aug. 9, 1974), rev’d sub nom. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), as soon as the issue began to arise in litigation, courts quickly recognized that for an employer to expect members of one sex to provide sexual favors as a condition of employment from which members of the other sex are exempt, or to view the only value of female employees as stemming from their sexualization, constitutes a fundamental type of discrimination in conditions of employment based on sex. See, e.g., Barnes v. Costle, 561 F.2d at 989 (finding that retaliation by plaintiff’s supervisor when she resisted his sexual advances “was plainly based on [plaintiff’s] gender”).11
The reason why any argument to the contrary would fail is not a matter of simplistic application of a formal standard, along the lines of “well, the employer wouldn’t have asked the same of a man, so it’s sex discrimination.” Sexual exploitation has been a principal obstacle to the equal *147 participation of women in the workplace, and whether or not individual legislators intended to prohibit it when they cast their votes for Representative Smith’s amendment, both the literal language of that amendment and the elimination of the social evil at which it was aimed make clear that the statute must be read to prohibit it.12
The same goes for other forms of “hostile environment” discrimination. The history of resistance to racial integration illustrates why. Employers forced to take down their “whites only” signs could not be permitted to retreat to the position that “you can make me hire black workers, but you can’t make me welcome them.” Making black employees so unwelcome that they would be deterred from seeking or retaining jobs previously reserved for whites must be treated as an instance of prohibited racial discrimination—and the same clearly goes for sex discrimination. The Supreme Court recognized that point, in exactly those terms:
The phrase “terms, conditions or privileges of employment” in Title VII is an expansive concept
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which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. ... Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation marks, brackets and emphasis omitted).
But such interpretations of employment “discrimination against any individual ... based on sex” do not say anything about whether discrimination based on other social categories is covered by the statute. Just as Congress adopted broader language than discrimination “against women,” it adopted narrower language than “discrimination based on personal characteristics or classifications unrelated to job performance.” Title VII does not adopt a broad principle of equal protection in the workplace; rather, its language singles out for prohibition discrimination based on particular categories and classifications that have been used to perpetuate injustice—but not all such categories and classifications. That is not a matter of abstract justice, but of political reality. Those groups that had succeeded by 1964 in persuading a majority of the members of Congress that unfair treatment of them ought to be prohibited were included; those who had not yet achieved that political objective were not.
Thus, if Representative Smith’s amendment had been defeated, Title VII would still be a landmark prohibition of the kinds of race-, religion-, and national origin-based employment discrimination that had historically disadvantaged blacks, Jews, Catholics, or Mexican– Americans. But it would not have protected women, and a subsequent shift in popular support for such protection would not have changed that fact, without legislative action. Similarly, *148 the statute did not protect those discriminated against, similarly unfairly, on the basis of age or disability; that required later legislation. See, e.g., Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.
None of this, of course, is remotely to suggest that employment discrimination on the basis of sexual orientation is somehow not invidious and wrong. But not everything that is offensive or immoral or economically inefficient is illegal, and if the view that a practice is offensive or immoral or economically inefficient does not command sufficiently broad and deep political support to produce legislation prohibiting it, that practice will remain legal. In the context of private-sector employment, racial

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discrimination was just as indefensible before 1964 as it is today, but it was not illegal. Discrimination against women, as President Kennedy’s commission understood, was just as unfair, and just as harmful to our economy, before Title VII prohibited it as it is now, but if Congress had not adopted Representative Smith’s amendment, it would have remained legal. Employment discrimination against older workers, and against qualified individuals with disabilities, imposed unfair burdens on those categories of individuals in 1964, yet it remained legal after the Civil Rights Act of 1964 became law, because Congress did not at that time choose to prohibit such discrimination. Congress is permitted to choose what types of social problems to attack and by which means. The majority says that “we have stated that ‘Title VII should be interpreted broadly to achieve equal employment opportunity,’ ” Maj. Op. at 111, quoting Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 935 (2d Cir. 1988), but of course that dictum13 appeared in the context of a discussion of racial discrimination. Congress, in fact, did not legislate in 1964 “broadly to achieve equal employment opportunity” for all Americans, but instead opted to prohibit only certain categories of unfair discrimination. It did not then prohibit, and alas has not since prohibited, discrimination based on sexual orientation.
B
The majority’s linguistic argument does not change the fact that the prohibition of employment discrimination “because of ... sex” does not protect gays and lesbians. Simply put, discrimination based on sexual orientation is not the same thing as discrimination based on sex. As Judge Sykes explained,
[t]o a fluent speaker of the English language—then and now—the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation.” The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. ... The words plainly describe different traits, and the separate and distinct meaning of each term is 27

easily grasped. More specifically to

the point here, discrimination

“because of sex” is not reasonably

understood

to

include

discrimination based on sexual

orientation, a different immutable

characteristic. Classifying people

by sexual orientation is different

than classifying them by sex.

*149 Hively, 853 F.3d at 363 (Sykes, J., dissenting) (footnote omitted).
Of course, the majority does not really dispute this common-sense proposition. It does not say that “sex discrimination” in the ordinary meaning of the term is literally the same thing as “sexual orientation discrimination.” Rather, the majority argues that discrimination based on sex encompasses discrimination against gay people because discrimination based on sex encompasses any distinction between the sexes that an employer might make for any reason.14 The argument essentially reads “discriminate” to mean pretty much the same thing as “distinguish.” And indeed, there are recognized English uses of “discriminate,” particularly when followed with “between” or “from,” that imply nothing invidious, but merely mean “to perceive, observe or note [a] difference,” or “[t]o make or recognize a distinction.” The Oxford English Dictionary Online, http://www.oed.com (search for “Discriminate,” verb, definitions 2a and 2b). For example, a person with perfect pitch is capable of discriminating a C from a C-sharp. But in the language of civil rights, a different and stronger meaning applies, that references invidious distinctions: “To treat a person or group in an unjust or prejudicial manner, esp[ecially] on the grounds of race, gender, sexual orientation, etc.; frequently with against.” Id. (definition 4).
And that is indeed the sense in which Title VII uses the word: the statute prohibits such practices as “fail[ing] or refus[ing] to hire or to discharge” persons on account of their race or sex or other protected characteristic, or “otherwise to discriminate against any individual” with respect to employment terms. 42 U.S.C. § 2000e-2(a)(1) (emphasis added). In other words, it is an oversimplification to treat the statute as prohibiting any distinction between men and women in the workplace, still less any distinction that so much as requires the employer to know an employee’s sex in order to be applied, cf. Maj. Op. at 112–13; the law prohibits discriminating against members of one sex or the other in the workplace.

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That point may have little bite in the context of racial discrimination. The different “races” are defined legally and socially, and not by actual biological or genetic differences—both Hitler’s Nuremberg laws and American laws imposing slavery and segregation had to define, arbitrarily, how much ancestry of a particular type consigned persons to a disfavored category, since there is no scientific or genetic basis for distinguishing a “Jew” or a “member of the colored race” from anyone else. And since no biological factor can support any job qualification based on race, courts have taken the view that to distinguish is, for the most part, to discriminate against. But in the area of sex discrimination, where the groups to be treated equally do have potentially relevant biological differences, not every distinction between men and women in the workplace constitutes discrimination against one gender or the other.15 The *150 distinctions that were prohibited, however, in either case, are those that operate to the disadvantage of (principally) the disfavored race or sex. That is the social problem that the statute aimed to correct.
Opponents of Title VII, and later of the Equal Rights Amendment (“ERA”), were fond of conjuring what they thought of as unthinkable or absurd consequences of gender equality. Some of those proved not so unthinkable or absurd at all. Workplace “protective” legislation that applied only to women soon fell by the wayside, see 29 C.F.R. § 1604.2(b)(1) (stating that protective laws for women “conflict with and are superseded by [T]itle VII”), despite Representative Cellar’s fears, without adverse consequences. But other distinctions based on sex remain, and their legality is either assumed, or at a minimum requires more thought than just “but that’s a distinction based on sex, so it’s illegal.”
Distinctions based on personal privacy, for example, remain in place. When opponents of the ERA, like Senator Ervin, argued that under the ERA “there can be no exception for elements of publically [sic] imposed sexual segregation on the basis of privacy between men and women,” 118 Cong. Rec. 9,564 (1972), that objection was derided by Senator Marlow Cook of Kentucky as the “potty” argument, id. at 9,531. Title VII too does not prohibit an employer from having separate men’s and women’s toilet facilities. Nor does it prohibit employer policies that differentiate between men and women in setting requirements regarding hair lengths. Thus, in Longo v. Carlisle DeCoppet & Co., we held that a policy “requiring short hair on men and not on women” did not violate Title VII. 537 F.2d 685, 685 (2d Cir. 1976); see also Tavora v. N.Y. Mercantile Exch., 101 F.3d 907, 908– 09 (2d Cir. 1996) (same).
28

Dress codes provide a more complicated example. It is certainly arguable that some forms of separate dress codes further stereotypes harmful to workplace equality for women; requiring female employees to wear “Hooters”style outfits but male employees doing the same work to wear suit and tie would not stand scrutiny. But what of a pool facility that requires different styles of bathing suit for male and female lifeguards? Judge Cabranes’s concurrence would seem to prohibit that practice, but I believe, and I expect Judge Cabranes would agree, that a pool that required both male and female lifeguards to wear a uniform consisting only of trunks would violate Title VII, while one that prescribed trunks for men and a bathing suit covering the breasts for women would not.
More controversial distinctions, such as different fitness requirements for men and women applying for jobs involving physical strength, have also been upheld. In a recent case, the Fourth Circuit rejected the *151 notion that Title VII prohibits gender-normed physical fitness benchmarks pursuant to which male FBI agent trainees must perform 30 push-ups, while female trainees need only do 14. Bauer v. Lynch, 812 F.3d 340, 342, 351 (4th Cir.), cert. denied, ––– U.S. ––––, 137 S.Ct. 372, 196 L.Ed.2d 290 (2016). In upholding this distinction, the court noted that of “the few decisions to confront the use of gender-normed physical fitness standards in the Title VII context, none has deemed such standards to be unlawful,” id. at 348, because courts have recognized that some physiological differences between men and women “impact their relative abilities to demonstrate the same levels of physical fitness,” id. at 351. Thus, the court in Bauer recognized that to distinguish between the sexes is not always to discriminate against one or the other. Indeed, a failure to impose distinct fitness requirements for men and women may be found to violate Title VII, if it has a disparate impact on one sex and the employer cannot justify the requirement as a business necessity. See Lanning v. Se. Pa. Transp. Auth. (SEPTA), 181 F.3d 478, 494 (3d Cir. 1999) (applying Civil Rights Act of 1991 and finding that time cutoff for 1.5 mile run for officers had a disparate impact, when women had a pass rate of only 6.7%, compared to a 55.6% pass rate for men, and remanding to district court to determine whether the score represents “the minimum qualifications necessary for successful performance of the job in question”). Taken to its logical conclusion, though, the majority’s interpretation of Title VII would do away with this understanding of the Act.
These examples suffice to illustrate two points relevant to the supposedly simple interpretation of sex-based discrimination relied upon by the majority. First, it is not

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the case that any employment practice that can only be applied by identifying an employee’s sex is prohibited. Second, neither can it be the case that any discrimination that would be prohibited if race were the criterion is equally prohibited when gender is used.16 Obviously, Title VII does not permit an employer to maintain racially segregated bathrooms, nor would it allow differentcolored or different-designed bathing costumes for white and black lifeguards. Such distinctions would smack of racial subordination, and would impose degrading differences of treatment on the basis of race. Precisely the same distinctions between men and women would not.17
Nor does the example of “discrimination based on traits that are a function of sex, such as life expectancy,” Maj. Op. at 112, help the majority’s cause. Discrimination of that sort, as the majority notes, could permit gross discrimination against female employees “by using traits that are associated with sex as a proxy for sex.” Id. at 112. That is certainly so as to “traits that are a function of sex,” such as pregnancy or the capacity to become pregnant. But it is not so as to discrimination based on *152 sexual orientation. Same-sex attraction is not “a function of sex” or “associated with sex” in the sense that life expectancy or childbearing capacity are.18 A refusal to hire gay people cannot serve as a covert means of limiting employment opportunities for men or for women as such; a minority of both men and women are gay, and discriminating against them discriminates against them, as gay people, and does not differentially disadvantage employees or applicants of either sex.19 That is not the case with other forms of “sexplus” discrimination that single out for disfavored status traits that are, for example, common to women but rare in men.20
C
That “because of ... sex” did not, and still does not, cover sexual orientation, is further supported by the movement, in both Congress and state legislatures, to enact legislation protecting gay men and women against employment discrimination. This movement, which has now been successful in twenty-two states—including all three in our Circuit—and the District of Columbia, has proceeded by expanding the categories of prohibited discrimination in state anti-discrimination laws.21 In none of those states did the prohibition of sexual orientation discrimination come by judicial interpretation of a preexisting prohibition on gender-based discrimination to
29

encompass discrimination on the basis of sexual orientation. Similarly, the Executive Branch has prohibited discrimination against gay men and lesbians in federal employment by adding “sexual orientation” to previously protected grounds. See Exec. Order No. 13087, 63 Fed. Reg 30,097 (May 28, 1998).22 Finally, the same approach has *153 been reflected in the repeated (but so far unsuccessful) introduction of bills in Congress to add “sexual orientation” to the list of prohibited grounds of employment discrimination in Title VII.23
The Department of Justice argues, relying on Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., ––– U.S. ––––, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015), that Congress ratified judicial interpretations of “sex” in Title VII as excluding sexual orientation when it amended the Civil Rights Act in 1991 and failed to overrule *154 judicial decisions holding that the sex discrimination provision of Title VII did not cover sexual orientation discrimination. See Brief of United States as Amicus Curiae 8–14. In Inclusive Communities, the Supreme Court held that disparate-impact claims are cognizable under the Fair Housing Act (“FHA”). 135 S.Ct. at 2525. In so holding, the Court found it relevant that Congress had amended the FHA after nine Courts of Appeals had held that the FHA allowed for disparate-impact claims, and did not alter the text of the Act in a way that would make it clear that disparate-impact claims were not contemplated by the FHA. Id. at 2519. Furthermore, the Court found it significant that the legislative history of the FHA amendment made it clear that Congress was aware of those Court of Appeals decisions. Id. at 2519–20. The majority dismisses this argument because at the time of the 1991 amendment to the Civil Rights Act, only three Courts of Appeals24 had ruled that Title VII did not cover sexual orientation, and Congress did not make clear, in the legislative history of the 1991 amendment, that it was aware of this precedent. Maj. Op. at 127–28.
In light of the clear textual and historical meaning of the sex provision that I have discussed above, I do not find it necessary to rely heavily on the more technical argument that strives to interpret the meaning of statutes by congressional actions and omissions that might be taken as ratifying Court of Appeals decisions. But I do think it is worth noting that the Supreme Court also found it relevant, in Inclusive Communities, that Congress had rejected a proposed amendment “that would have eliminated disparate-impact liability for certain zoning decisions.” 135 S.Ct. at 2520. Here, while only three Courts of Appeals may have ruled on the issue by 1991, over twenty-five amendments had been proposed to add sexual orientation to Title VII between 1964 and 1991.

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All had been rejected. In fact, two amendments were proposed in 1991, one in the House and one in the Senate, Civil Rights Amendments Act of 1991, S. 574, 102d Congress; Civil Rights Amendments Act of 1991, H.R. 1430, 102d Congress, and neither of those amendments found its way into the omnibus bill that overruled other judicial interpretations of the Civil Rights Act. Moreover, in addition to the three Courts of Appeals that had ruled on the issue, the EEOC—the primary agency charged by Congress with interpreting and enforcing Title VII—had also held, by 1991, that sexual orientation discrimination fell “outside the purview of Title VII.” Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074, at *3 (Feb. 14, 1990).
Thus, to the extent that we can infer the awareness of Congress at all, the continual attempts to add sexual orientation to Title VII, as well as the EEOC’s determination regarding the meaning of sex, should be considered, in addition to the three appellate court decisions, as evidence that Congress was unquestionably aware, in 1991, of a general consensus about the meaning of “because of ... sex,” and of the fact that gay rights advocates were seeking to change the law by adding a new category of prohibited discrimination to the statute.
Although the Supreme Court has rightly cautioned against relying on legislative inaction as evidence of congressional intent, because “several equally tenable inferences may be drawn from such inaction, including the inference that the existing *155 legislation already incorporated the offered change,” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (internal quotation marks omitted), surely the proposal and rejection of over fifty amendments to add sexual orientation to Title VII means something. Supra note 23. And it is pretty clear what it does not mean. It is hardly reasonable, in light of the EEOC and judicial consensus that sex discrimination did not encompass sexual orientation discrimination, to conclude that Congress rejected the proposed amendments because senators and representatives believed that Title VII “already incorporated the offered change.” Pension Benefit Guar. Corp., 496 U.S. at 650, 110 S.Ct. 2668. There may be many reasons why each proposal ultimately failed, but it cannot reasonably be claimed that the basic reason that Congress did not pass such an amendment year in and year out was anything other than that there was not yet the political will to do so.
This last point requires one further disclaimer. As with the social pre-history of Title VII, these later developments are not referenced in a dubious effort to infer the specific intentions of the members of Congress who voted for the
30

Smith amendment in 1964, nor are they referenced to infer the specific intent of each Congress that was faced with proposed sexual orientation amendments. The point, rather, is that race, gender, and sexual orientation discrimination have been consistently perceived in the political world, and by the American population as a whole, as different practices presenting different social and political issues. At different times over the last few generations, the recognition of each as a problem to be remedied by legislation has been controversial, with the movements to define each form of discrimination as illegal developing at a different pace and for different reasons, and being opposed in each case by different coalitions for different reasons. To recognize this fact is to understand that discrimination against persons based on sex has had, in law and in politics, a meaning that is separate from that of discrimination based on sexual orientation.25
In short, Title VII’s prohibition of employment discrimination against individuals *156 on the basis of their sex is aimed at employment practices that differentially disadvantage men vis-à-vis women or women vis-à-vis men. That is what the language of the statute means to an ordinary “fluent speaker of the English language,” Hively, 853 F.3d at 363 (Sykes, J., dissenting), that is the social practice that Congress chose to legislate against, and in light of that understanding, certain laws and practices that distinguish between men and women have been found to violate Title VII, and certain others have not. Discrimination against persons whose sexual orientation is homosexual rather than heterosexual, however offensive such discrimination may be to me and to many others, is not discrimination that treats men and women differently. The simplistic argument that discrimination against gay men and women is sex discrimination because targeting persons sexually attracted to others of the same sex requires noticing the gender of the person in question is not a fair reading of the text of the statute, and has nothing to do with the type of unfairness in employment that Congress legislated against in adding “sex” to the list of prohibited categories of discrimination in Title VII.
III
The majority opinion goes on to identify two other arguments in support of its holding: (1) that sexual orientation discrimination is actually “gender

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stereotyping” that constitutes discrimination against individuals based on their sex, and (2) that such discrimination constitutes prohibited “associational discrimination” analogous to discriminating against employees who are married to members of a different race.
These arguments have the merit of attempting to link discrimination based on sexual orientation to the social problem of gender discrimination at which Title VII is aimed. But just as the “differential treatment” argument attempts to shoehorn sexual orientation discrimination into the statute’s verbal template of discrimination based on sex, these arguments attempt a similar (also unsuccessful) maneuver with lines of case law. While certain Supreme Court cases identify clear-cut examples of sex or race discrimination that may have a superficial similarity to the practice at issue here, the majority mistakes that similarity for a substantive one.

significant hindrance to women seeking such positions, even when a particular woman is demonstrably qualified, or indeed even where empirical data show that on average women perform as well as or better than men on the relevant tasks. Refusing to hire or promote someone because of that sort of gender (or racial, or ethnic, or religious) stereotyping is not a separate form of sex (or race, or ethnic, or religious) discrimination, but is precisely discrimination in hiring or promotion based on sex (or race, or ethnicity, or religion). It treats applicants or employees not as individuals but as members of a class that is disfavored for purposes of the employment decision by reason of a trait stereotypically assigned to members of that group as a whole. For the most part, then, the kind of stereotyping that leads to discriminatory employment decisions that violate Title VII is the assignment of traits that are negatively associated with job performance (dishonesty, laziness, greed, submissiveness) to members of a particular protected class.

A
Perhaps the most appealing of the majority’s approaches is its effort to treat sexual orientation discrimination as an instance of sexual stereotyping. The argument proceeds from the premises that “sex stereotyping violates Title VII,” Maj. Op. at 120, and that “same-sex orientation ‘represents the ultimate case of failure to conform’ to gender stereotypes,” id. at 121, quoting Hively, 853 F.3d at 346, and concludes that an employer who discriminates against gay people is therefore “sex stereotyping” and thus violating Title VII. But like the other arguments adopted by the majority, this approach rests more on verbal facility than on social reality.
In unpacking the majority’s syllogism, it is first necessary to address what we mean by “sex stereotyping” that “violates Title VII.” Invidious stereotyping of members of racial, gender, national, or religious groups is at the heart of much employment discrimination. Most employers do not entertain, let alone admit to, older forms of racialist or other discriminatory ideologies that hold that members of certain groups are inherently or genetically inferior and undeserving of equal treatment. Much more common are assumptions, not always even conscious, that associate certain negative traits with particular groups. A perception that women, for example, are not *157 suited to executive positions, or are less adept at the mathematical and practical skills demanded of engineers, can be a
31

Clearly, sexual orientation discrimination is not an example of that kind of sex stereotyping; an employer who disfavors a male job applicant whom he believes to be gay does not do so because the employer believes that most men are gay and therefore unsuitable. Rather, he does so because he believes that most gay people (whether male or female) have some quality that makes them undesirable for the position, and that because this applicant is gay, he must also possess that trait. Although that is certainly stereotyping, and invidiously so, it does not stereotype a group protected by Title VII, and is therefore not (yet) illegal.
But as the majority correctly points out, that is not the only way in which stereotyping can be an obstacle to protected classes of people in the workplace. The stereotyping discussed above involves beliefs about how members of a particular protected category are, but there are also stereotypes (or more simply, beliefs) about how members of that group should be. In the case of sex discrimination in particular, stereotypes about how women ought to look or behave can create a double bind. For example, a woman who is perceived through the lens of a certain “feminine” stereotype may be assumed to be insufficiently assertive for certain positions by contrast to men who, viewed through the lens of a “masculine” stereotype, are presumed more likely to excel in situations that demand assertiveness. At the same time, the employer may fault a woman who behaves as assertively as a male comparator for being too aggressive, thereby failing to comply with societal expectations of femininity.
That is the situation that a plurality of the Supreme Court identified in Price Waterhouse v. Hopkins, 490 U.S. 228,

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109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the key case the majority relies on for its “sex stereotyping” argument. As that opinion pointed out, “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.” Id. at 251, 109 S.Ct. 1775. The two horns of the dilemma described in Price Waterhouse have slightly different, yet equally problematic, sexist foundations: a female employee or applicant may be prejudiced by a negative assumption that women aren’t or can’t be sufficiently dominant for a position that requires leadership or strength or aggression, but when a woman unquestionably *158 does show the putatively desired traits, she is held back because of the different but related notion that women shouldn’t be aggressive or dominant. The latter is not an assumption about how most women are, it is a normative belief about how all women should be.
I fully accept the conclusion that that kind of discrimination is prohibited, and that it imposes different conditions of employment on men and on women. Not only does such discrimination require women to behave differently in the workplace than men, but it also actively deters women from engaging in kinds of behavior that are required for advancement to certain positions, and thus effectively bars them from such advancement. The key element here is that one sex is systematically disadvantaged in a particular workplace. In that circumstance, sexual stereotyping is sex discrimination.26
But as Judge Sykes points out in her Hively dissent, the homophobic employer is not deploying a stereotype about men or about women to the disadvantage of either sex. Such an employer is expressing disapproval of the behavior or identity of a class of people that includes both men and women. 853 F.3d at 370. That disapproval does not stem from a desire to discriminate against either sex, nor does it result from any sex-specific stereotype, nor does it differentially harm either men or women vis-à-vis the other sex. Rather, it results from a distinct type of objection to anyone, of whatever gender, who is identified as homosexual. The belief on which it rests is not a belief about what men or women ought to be or do; it is a belief about what all people ought to be or do—to be heterosexual, and to have sexual attraction to or relations with only members of the opposite sex. That does not make workplace discrimination based on this belief better or worse than other kinds of discrimination, but it does make it something different from sex discrimination, and therefore something that is not prohibited by Title VII.
32

B
The “associational discrimination” theory is no more persuasive. That theory rests on cases involving race discrimination.27 Many courts have found that Title VII prohibits discrimination in cases in which, as in our case of Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), a white plaintiff alleged that he was fired because he was married to a person of a different race.
It would require absolute blindness to the history of racial discrimination in this country not to understand what is at stake in such cases, and why such allegations unmistakably state a claim of discrimination against an individual employee on the basis of race. Antimiscegenation laws constituted a bulwark of the structure of institutional racism that is the paradigm of invidious discrimination in this country. African–Americans were condemned first to slavery, and then to second-class citizenship and virtual apartheid, on the basis of an ideology that regarded them as inferior. Such an ideology is incompatible with fraternization, *159 let alone marriage and reproduction, between African–Americans and whites. A prohibition on “race-mixing” was thus grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.
Thus, as the Supreme Court noted in striking down Virginia’s law prohibiting marriage between a white person and a person of color, the Supreme Court of Virginia had upheld the statute because Virginia defined its “legitimate” purposes as “ ‘preserv[ing] the racial integrity of [the state’s] citizens,’ and [ ] prevent[ing] ‘the corruption of blood,’ ‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride,’ ” purposes the Court correctly identified and rejected as “obviously an endorsement of the doctrine of White Supremacy.” Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), quoting Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, 756 (1955). The racist hostility to “racemixing” extended well beyond a prohibition against interracial marriage. The beatings of “freedom riders” attempting to integrate interstate bus lines in the South in the early 1960s, inflicted on white as well as black participants in the protests, demonstrated that racial bigotry against African–Americans manifested itself in direct attacks not only on African–Americans, but also on

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whites who associated with African–Americans as equals. The entire system of “separate but equal” segregation in both state-owned and private facilities and places of public accommodation was designed, as Charles Black made plain in a classic deconstruction of the legal fiction of “separate but equal,” to confine black people to “a position of inferiority.” Charles Black, The Lawfulness of the Segregation Decision, 69 Yale L.J. 421, 424 (1960). Thus, the associational discrimination reflected in cases such as Loving and Holcomb was a product of bigotry against a single race by another. That discrimination is expressly prohibited in employment by Title VII.
Workplace equality for racial minorities is thus blatantly incompatible with a practice that ostracizes, demeans, or inflicts adverse conditions on white employees for marrying, dating, or otherwise associating with, people of color. The prohibition of that kind of discrimination is not simply a matter of noting that, in order to effectuate it, the employer must identify the races of the employee and the person(s) with whom he or she associates. Just as sexual harassment against female employees presents a serious obstacle to the full and equal participation of women in the workplace, discrimination against members of a favored race who so much as associate with persons of another race reflects a deep-seated bigotry against the disfavored race(s) that Title VII undertakes to banish from the workplace. The principle was well stated by the Sixth Circuit in a case cited by the majority, Barrett v. Whirlpool Corporation:
Title VII protects individuals who, though not members of a protected class, are victims of discriminatory animus toward protected third persons with whom the individuals associate.
556 F.3d 502, 512 (6th Cir. 2009) (internal quotation marks and brackets omitted).28
*160 Discrimination on the basis of sexual orientation, however, is not discrimination of the sort at issue in Holcomb and Barrett. In those cases, the plaintiffs alleged that they were discriminated against because the employer was biased—that is, had a “discriminatory animus”— against members of the race with whom the plaintiffs associated. There is no allegation in this case, nor could there plausibly be, that the defendant discriminated against Zarda because it had something against men, and therefore discriminated not only against men, but also

against anyone, male or female, who associated with them. I have no trouble assuming that the principle of Holcomb and Barrett applies beyond the category of race discrimination: an employer who fired or refused to promote an Anglo–American, Christian employee because she associated with Latinos or Jews would presumably run afoul of that principle just as much as one whose animus ran against black Americans. Such an employer would clearly be discriminating against the employee on the basis of her friends’ ethnicity or religion—in the formulation from the Barrett opinion, that employer would be victimizing an employee out of “discriminatory animus toward protected third persons with whom the [employee] associate[d].” 556 F.3d at 512 (internal quotation marks and alterations omitted).29
It is more difficult to imagine realistic hypotheticals in which an employer discriminated against anyone who so much as associated with men or with women, though I suppose academic examples of such behavior could be conjured. But whatever such a case might look like, discrimination against gay people is not it. Discrimination against gay men, for example, plainly is not rooted in animus toward “protected third persons with whom [they] associate.” Id., 556 F.3d at 512. An employer who practices such discrimination is hostile to gay men, not to men in general; the animus runs not, as in the race and religion cases discussed above, against a “protected group” to which the employee’s associates belong, but against an (alas) unprotected group to which they belong: other gay men.30
The majority tries to rebut this straightforward distinction in various ways. First, it notes—but declines to rely on— academic “research suggesting that sexual orientation discrimination has deep misogynistic roots.” Maj. Op. at 126. It is certainly plausible to me that the “deep roots” of hostility to homosexuals are in some way related to the same sorts of beliefs about the proper roles of men and women in family life that underlie at least some employment discrimination against women. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 234 (1994) (noting that “[i]t should be clear from ordinary experience that the stigmatization of the homosexual has something to do with the homosexual’s supposed deviance from traditional sex roles”) (emphasis in original). It may also be that the “roots” of all forms of discrimination against people who are different in some way from a socially defined dominant group can be found in similar psychological *161 processes of discomfort with change or difference, or with “authoritarian personality traits”31—or that there are other links among different forms of prejudice. And it can plausibly be

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argued that homosexual men have historically been derided because they were seen as abdicating their masculinity, and therefore the advantage they have over women. See, e.g., Joseph H. Pleck, Men’s Power with Women, Other Men, and Society: A Men’s Movement Analysis, in The American Man 417, 424 (Elizabeth H. Pleck & Joseph H. Pleck eds., 1980).
But the majority is right not to go searching for such roots, whatever they might be, because legislation is not typically concerned, and Title VII manifestly is not concerned, with defining and eliminating the “deep roots” of biased attitudes. Congress legislates against concrete behavior that represents a perceived social problem. Title VII does not prohibit “misogyny” or “sexism,” nor does it undertake to revise individuals’ ideas (religious or secular) about how families are best structured. Rather, it prohibits overt acts: discrimination in hiring, promotion, and the terms and conditions of employment based on sex.32 Similarly, states, like those in our Circuit, that have prohibited discrimination based on sexual orientation do not seek to eradicate disapproval of homosexual practices (whether rooted in religious belief or misogyny or some other theory, or caused by some conditioned or other visceral reaction). People may believe what they like, but they may not discriminate in employment against those whose characteristics or behaviors place them within the ambit of a protected category. Unlike those states, though, Congress has not enacted such a prohibition, and the fact that some of us believe that sexual orientation discrimination is unfair for much the same reasons that we disapprove of sex discrimination does not change that reality.
Second, the majority suggests that my analysis of associational discrimination is “squarely foreclosed by” cases like Oncale. Maj. Op. at 127. It is not. As noted above, I do not maintain that Title VII prohibits only those practices that its framers might have been principally concerned with, or only what was “traditionally,” id., seen as sex discrimination. To reiterate: sexual harassment plays a large role in hindering women’s entry into, and advancement in, the workplace, and thus it is no surprise that courts have interpreted Title VII to prohibit it. And because Title VII protects both men and women from such practices, it does not matter whether the victim is male or female. Sexual harassment in the workplace quite literally imposes conditions of employment on one sex that are not imposed on the other, and it does not matter whether the employer who perpetrates such discriminatory disadvantage is male or female, or of the same or different sex than the employee. The victim of discrimination in such situations is selected by his or her sex, and the disadvantage is *162 imposed
34

on him or her by reason of his or her membership in the protected class. It is not a question of what is “traditionally conceptualized as sexism.” Maj. Op. at 127. It is a question of the public meaning of the words adopted by Congress in light of the social problem it was addressing when it chose those words.
C
In the end, perhaps all of these arguments, on both sides, boil down to a disagreement about how discrimination on the basis of sexual orientation should be conceptualized. Whether based on linguistic arguments or associational theories or notions of stereotyping, the majority’s arguments attempt to draw theoretical links between one kind of discrimination and another: to find ways to reconceptualize discrimination on the basis of sexual orientation as discrimination on the basis of sex. It is hard to believe that there would be much appetite for this kind of recharacterization if the law expressly prohibited sexual orientation discrimination, or that any opponent of sexual orientation discrimination would oppose the addition of sexual orientation to the list of protected characteristics in Title VII on the ground that to do so would be redundant or would express a misunderstanding of the nature of discrimination against men and women who are gay. I believe that the vast majority of people in our society—both those who are hostile to homosexuals and those who deplore such hostility—understand bias against or disapproval of those who are sexually attracted to persons of their own sex as a distinct type of prejudice, and not as merely a form of discrimination against either men or women on the basis of sex.
The majority asserts that discrimination against gay people is nothing more than a subspecies of discrimination against one or the other gender. Discrimination against gay men and lesbians is wrong, however, because it denies the dignity and equality of gay men and lesbians, and not because, in a purely formal sense, it can be said to treat men differently from women. It is understandable that those who seek to achieve legal protection for gay people victimized by discrimination search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute

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sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice. Accordingly, much as I might wish it were otherwise, I must conclude that those arguments fail.
IV
The law with respect to the rights of gay people has advanced considerably since 1964. Much of that development has been by state legislation. As noted above, for example, twenty-two states now prohibit, by explicit legislative pronouncement, employment discrimination on the basis of sexual orientation. See supra note 21. But other advances have come by means of Supreme Court decisions interpreting the Constitution. Perhaps the most striking advance, from the vantage of the early 1960s, has been the legalization of same-sex marriage as a matter of constitutional law.33
*163 Nothing that I have said in this opinion should be interpreted as expressing any disagreement with the line of cases running from Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (invalidating criminal prohibitions of consensual sexual relations between members of the same sex), through Obergefell v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (holding that persons of the same sex have a constitutional right to marry). But those cases provide no support for the plaintiff’s position in this case, or for the method of interpretation utilized by the majority.
For one thing, it is noteworthy that none of the Supreme Court’s landmark constitutional decisions upholding the rights of gay Americans depend on the argument that laws disadvantaging homosexuals constitute merely a species of the denial of equal protection of the laws on the basis of gender, or attempt to assimilate discrimination against gay people to the kinds of sex discrimination that were found to violate equal protection in cases like Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), and Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), in the 1970s.34 Instead, the Court’s gay rights cases were based on the guarantee of “liberty” embodied in the Fourteenth Amendment.
There is also a more fundamental difference. The Supreme Court’s decisions in this area are based on the
35

Constitution of the United States, rather than a specific statute, and the role of the courts in interpreting the Constitution is distinctively different from their role in interpreting acts of Congress. There are several reasons for this.
First, the entire point of the Constitution is to delimit the powers that have been granted by the people to their government. Our Constitution creates a republican form of government, in which the democratically elected representatives of the majority of the people are granted the power to set policy. But the powers of those representatives are constrained by a written text, which prevents a popular majority—both in the federal Congress and, since the Civil War Amendments, in state legislatures—from violating certain fundamental rights. As every law student reads in his or her first-year constitutional law class, “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). To the extent that the courts exercise a nondemocratic or counter-majoritarian power, they do so in the name of those rights. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (quoting United States v. Carolene Products, 304 U.S. 144, 153 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) to explain that “one aspect of the judiciary’s role under the Equal Protection Clause is to protect ‘discrete and insular minorities’ from majoritarian prejudice or indifference”). Particular exercises of that power, including the gay rights decisions of this new millennium, may be controversial, *164 and fierce disagreements exist over the legitimacy of various methods of constitutional interpretation. And it is not controversial that the power to assess the constitutionality of legislation must be exercised with restraint, and with a due deference to the judgments of elected officials who themselves have taken an oath to defend the Constitution. But it has long been generally accepted that the courts have a special role to play in defending the liberties enshrined in the Constitution against encroachment even by the people’s elected representatives. See City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (explaining that “Congress’ discretion [to enact legislation] is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution”).
Within the limits imposed by constitutional principles, however, the will of the majority, as expressed in legislation adopted by the people’s representatives, governs. As the Supreme Court has instructed, the role of

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courts with respect to statutes is simply “to apply the statute as it is written—even if we think some other approach might accord with good policy.” Sandifer v. U.S. Steel Corp., ––– U.S. ––––, 134 S.Ct. 870, 878, 187 L.Ed.2d 729 (2014), quoting Burrage v. United States, –– – U.S. ––––, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014). Just last Term, a unanimous Supreme Court foreclosed judicial efforts to “update” statutes, declaring that, although “reasonable people can disagree” whether, following the passage of time, “Congress should reenter the field and alter the judgments it made in the past[,] ... the proper role of the judiciary in that process ... [is] to apply, not amend, the work of the People’s representatives.” Henson v. Santander Consumer USA Inc., ––– U.S. ––––, 137 S.Ct. 1718, 1725–26, 198 L.Ed.2d 177 (2017). In interpreting statutes, courts must not merely show deference or restraint; their obligation is to do their best to understand, in a socially and politically realistic way, what decisions the democratic branches of government have embodied in the language they voted for (and what they have not), and to interpret statutes accordingly in deciding cases.
Second, the rights conferred by the Constitution are written in broad language. As the great Chief Justice Marshall commented, our Constitution is “one of enumeration, and not of definition.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 72, 6 L.Ed. 23 (1824). Examples are easily cited: The Constitution does not contain a list of specific punishments that are too cruel to be imposed; it prohibits, in general language, “cruel and unusual punishments.” U.S. Const. amend. VIII. It does not enact a code of police procedure that explains exactly what kinds of searches the police may conduct, under what particular circumstances; it prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. It does not, as relevant here, identify particular types of discriminatory actions by state governments that it undertakes to forbid; it demands that those governments provide to all people within our borders “the equal protection of the laws.” U.S. Const. amend. XIV.
Legislation, in contrast, can and often does set policy in minute detail. It does not necessarily concern itself with deep general principles. Rather, legislators are entitled to pick and choose which problems to address, and how far to go in addressing them. Within the limits of constitutional guarantees, Congress is given “wide latitude” to legislate, City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157, but courts must struggle to define those limits by giving coherent meaning to broad constitutional principles. The majestic guarantee of equal *165 protection in the Fourteenth Amendment is a very different kind of pronouncement than the prohibition, in

Title VII, of specific kinds of discrimination, by a specified subset of employers, based on clearly defined categories. The language of the Constitution thus allows a broader scope for interpretation.
Third, and following in part from above, the Constitution requires some flexibility of interpretation, because it is intended to endure; it was deliberately designed to be difficult to amend.35 It is difficult to amend because the framers believed that certain principles were foundational and, for practical purposes, all but eternal, and should not be subject to the political winds of the moment. A constitution is, to quote Chief Justice Marshall yet again, “framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” Cohens v. State of Virginia, 19 U.S. (6 Wheat.) 264, 387, 5 L.Ed. 257 (1821). The choice of broad language reflects the framers’ goal: they did not choose to prohibit “cruel and unusual punishments,” rather than listing prohibited punishments, simply to save space, on the assumption that future courts could consult extraconstitutional sources to identify what particular penalties they had in mind; they did so in order to enshrine a general principle, leaving its instantiation and elaboration to future interpreters.
Those enduring principles would not, could not, endure if they were incapable of adaptation—at times via judicial interpretation—to new social circumstances, as well as new understandings of old problems. That idea is not new. In 1910, the Supreme Court wrote, in the context of the Eighth Amendment, that “[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.” Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 54 L.Ed. 793 (1910). More recently, in Obergefell, the Court noted that “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” 135 S.Ct. at 2603.
Legislation, on the other hand, is not intended to last forever. It must be consistent with constitutional principles, and ideally it will be inspired by a principled concept of ordered liberty. But it nevertheless remains the domain of practical political compromise. Congress and the state legislatures are in frequent session, and are capable—notwithstanding criticisms of “gridlock” and praise of “checks and balances”—of acting to repeal, extend, or modify prior enactments. In interpreting the Constitution, courts speak to the ages; in interpreting

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legislation, federal courts speak to—and essentially for— Congress, which can always correct our mistakes, or revise legislation in light of changing political and social realities.
Finally, the Constitution, as noted above, is designed, with very limited exceptions,36 to govern the government. The *166 commands of equal protection and respect for liberties that can only be denied by due process of law tell us how a government must behave when it regulates the people who created it. Legislation, however, generally governs the people themselves, in their relation with each other.
The question of how the government, acting at the behest of a possibly temporary political majority, is permitted to treat the people it governs, is a different question, and is answered by reference to different principles, than the question of what obligations should be imposed on private citizens. The former question must ultimately be answered by courts under the principles adopted in the Constitution. The latter is entrusted primarily to the legislative process. Courts interpreting statutes are not in the business of imposing on private actors new rules that have not been embodied in legislative decision. It is for that reason that segregation in public facilities was struck down by constitutional command, long before segregation of private facilities was prohibited by federal legislation adopted by Congress. Whether or not the Fifth and Fourteenth Amendments have something to say about whether the state and federal governments may discriminate in employment against gay Americans—a question that is not before us, and about which I express no view—it is the prerogative of Congress or a state legislature to decide whether private employers may do so.
In its amicus submission, the EEOC quite reasonably asks whether it is just that a gay employee can be married on Sunday, and fired on Monday—discriminated against at his or her job for exercising a right that is protected by the Constitution. Brief of the Equal Employment Opportunity Commission as Amicus Curiae 22.37 I would answer that it is not just. But at the same time, I recognize that the law does not prohibit every injustice. The Constitution protects the liberty of gay people to marry against deprivation by their government, but it does not promise freedom from discrimination by their fellow citizens. That is hardly a novel proposition: absent Title VII, the same injustice could have been inflicted on the Lovings themselves. The Constitution protected them against governmental discrimination, but (except for specific vestiges of slavery prohibited by the Thirteenth Amendment) only an act of Congress can prohibit one
37

individual from discriminating against another in housing, public accommodations, and employment. It is well to remember that whether to prohibit race and sex discrimination was a controversial political question in 1964. Imposing an obligation on private employers to treat women and minorities fairly required political organizing and a political fight.
At the end of the day, to paraphrase Chief Justice Marshall, in interpreting statutes we must never forget that it is not a Constitution we are expounding. Cf. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). When interpreting an act of Congress, we need to respect the choices made by Congress about which social problems to address, and how to address them. In 1964, Congress—belatedly—prohibited employment discrimination based on race, sex, religion, ethnicity, and national origin. Many states have similarly recognized the injustice of discrimination on the basis of sexual orientation. *167 In doing so, they have called such discrimination by its right name, and taken a firm and explicit stand against it. I hope that one day soon Congress will join them, and adopt that principle on a national basis. But it has not done so yet.
For these reasons, I respectfully, and regretfully, dissent.38
Debra Ann Livingston, Circuit Judge, dissenting:
I dissent for substantially the reasons set forth in Sections I, II, and III of Judge Lynch’s opinion, and I join in those sections. I share in the commitment that all individuals in the workplace be treated fairly, and that individuals not be subject to workplace discrimination on the basis of their sexual orientation, just as on the basis of their “race, color, religion, sex, [and] national origin.” I cannot conclude, however, as the majority does, that sexual orientation discrimination is a “subset” of sex discrimination, Maj. Op. at 112–13, 114 n.10, 119, 119– 20, et passim, and is therefore included among the prohibited grounds of workplace discrimination listed in Title VII.1
The majority’s efforts founder on the simple question of how a reasonable reader, competent in the language and its use, would have understood Title VII’s text when it was written—on the question of its public meaning at the time of enactment. The majority acknowledges the argument “that it is not ‘even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have

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understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation.’ ” Id. at 114 (citation omitted). It does not contest the point, however, but seeks merely to justify its departure from ordinary, contemporary meaning by claiming that “[e]ven if that [is] so,” its approach no more departs from the ordinary meaning of words in their contemporary context than supposedly occurred when sexual harassment and hostile work environment claims were first recognized by courts. Id. at 114–15. But as Judge Lynch has cogently explained, that is simply not the case. Dissenting Op. at 144–47. The majority does not discover a “plain” yet hidden meaning in Title VII, sufficiently obscure as to wholly elude every appellate court, including this one, until the Seventh Circuit’s decision in Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc), last year. Instead, it sub silentio abandons our usual approach to statutory interpretation. See, e.g., Sandifer v. U.S. Steel Corp., ––– U.S. ––––, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014) (noting the “ ‘fundamental canon of statutory construction’ that, ‘unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning’ ” (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ) ); Bilski v. Kappos, 561 U.S. 593, 603, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010) (quoting Perrin and applying the same canon of statutory interpretation); Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (same).
Because Sections I, II, and III of Judge Lynch’s dissent are sufficient to answer the statutory question that this case presents, *168 I do not go further to address the subject of constitutional interpretation, and do not join in Section IV. I agree with Judge Lynch, however, that constitutional and statutory interpretation should not be confused: that while courts sometimes may be called upon to play a special role in defending constitutional liberties against encroachment by government, in statutory interpretation, courts “are not in the business of imposing on private actors new rules that have not been embodied in legislative decision.” Dissenting Op. at 166. To do so chips away at the democratic and rule-of-law principles on which our system of governance is founded—the very principles we rely on to secure the legitimacy and the efficacy of our laws, including antidiscrimination legislation.2
The Supreme Court said unanimously, just last Term, that the proper role of the judiciary in statutory interpretation is “to apply, not amend, the work of the People’s representatives,” even when reasonable people might believe that “Congress should reenter the field and alter
38

the judgments it made in the past.” Henson v. Santander Consumer USA Inc., ––– U.S. ––––, 137 S.Ct. 1718, 1725–26, 198 L.Ed.2d 177 (2017). “[I]t is for Congress, not the courts, to write the law,” Stanard v. Olesen, 74 S.Ct. 768, 771, 98 L.Ed. 1151 (1954), and where “Congress’ ... decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them[,]” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 427, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985) (citing Victory Carriers, Inc v. Law, 404 U.S. 202, 216, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) ).
This hornbook separation-of-powers principle and the reasons behind it need not be elaborated here, for both should be well known to every law student. See The Federalist No. 47, at 251–52 (James Madison) (Carey & McClellan eds., 2001) (quoting Montesquieu to the effect that “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator”); see also I.N.S. v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (noting that “hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted”). Together, they explain why judges interpreting statutes do their best to discern the ordinary, contemporary, common meaning of the statute’s language. This is the law that was enacted through the democratic process, and the law we are to apply.
This approach does not always yield results that satisfy the judge charged with the task of statutory interpretation. It has not done so today. But I cannot faithfully join in the majority’s opinion. I agree with Judge Lynch that when Title VII was written and, indeed, today, “bias against or disapproval of those who are sexually attracted to persons of their own sex” was and is viewed “as a distinct type of prejudice,” and not as a subcategory of “discrimination against either men or women on the basis of sex.” Dissenting Op. at 162. Accordingly, and agreeing with him that in interpreting an act of Congress, we must “respect the choices made by Congress about which social problems to address, *169 and how to address them,” id. at 166, I respectfully dissent.
Reena Raggi, Circuit Judge, dissenting:
A majority of the court today extends Title VII’s prohibition of employment discrimination “because of ... sex,” 42 U.S.C. § 2000e-2(a)(1), to discrimination based

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on sexual orientation. I respectfully dissent substantially for the reasons stated by Judge Lynch in Parts I, II, and III of his dissenting opinion and by Judge Livingston in her dissenting opinion.

All Citations
883 F.3d 100, 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

Footnotes

*

Judge Sack and Judge Lynch, who are senior judges, are eligible to participate in this en banc pursuant to 28 U.S.C. § 46(c)(1) and

28 U.S.C. § 294(c).

1

Zarda died in a BASE jumping accident after the district court awarded partial summary judgment but prior to trial on the

remaining claims. The executors of his estate have been substituted as plaintiffs. Zarda and the executors of his estate are

referred to collectively as “Zarda” throughout this opinion.

2

This opinion assumes arguendo that “sex” in Title VII “means biologically male or female,” Hively v. Ivy Tech Cmty. Coll. of Ind.,

853 F.3d 339, 362 (7th Cir. 2017) (en banc) (Sykes, J., dissenting), and uses the terms “sex” and “gender” interchangeably, as do

the Supreme Court and other circuits cited herein.

3

The First Circuit has since qualified Higgins, holding that a plaintiff may “bring[ ] sex-plus claims under Title VII where, in addition

to the sex-based charge, the ‘plus’ factor is the plaintiff’s status as a gay or lesbian individual.” Franchina v. City of Providence,

881 F.3d 32, 54 (1st Cir. 2018).

4

This Court has squarely held that failure to present a Title VII claim to the EEOC before filing suit in federal court “is not a

jurisdictional prerequisite, but only a precondition to bringing a Title VII action that can be waived by the parties or the court.”

Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (alterations and internal quotation marks omitted).

5

The full quotation is, “I am not making this charge on the grounds that I was discriminated on the grounds of my sexual

orientation. Rather, I am making this charge because, in addition to being discriminated against because of my sexual orientation,

I was also discriminated against because of my gender.” S.A. 3. Although inartful and perhaps even confusing, the best

interpretation of this statement, read in the context of the entire charge, is that Zarda alleged that the sexual orientation

discrimination he experienced was a subset of gender discrimination. Even if otherwise, the governing rule is that “[c]laims not

raised in an EEOC complaint ... may be brought in federal court if they are reasonably related to the claim filed with the agency.”

Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (internal quotation marks omitted). A claim is considered reasonably

related if the alleged conduct “would fall within the scope of the EEOC investigation which can reasonably be expected to grow

out of the charge that was made.” Id. (internal quotation marks omitted). Because Zarda’s charge gave the Commission

“adequate notice to investigate discrimination on both bases,” it is irrelevant whether Zarda’s EEOC complaint unequivocally

alleged sexual orientation discrimination. Id. (internal quotation marks omitted).

6

Defendants’ additional argument, which is that the executors of Zarda’s estate lack standing to pursue this action, is premised on

the representation that the sexual orientation claim under Title VII was not raised before the district court so the estate may not

now raise that claim on the deceased plaintiff’s behalf. Because we find that the sexual orientation claim was properly raised, we

need not address this argument.

7

Importantly, Title VII protection does not hinge on whether sexual orientation discrimination is “synonymous with sex

discrimination.” Hively, 853 F.3d at 363 (Sykes, J., dissenting). While synonyms are coextensive, sex discrimination obviously

encompasses more than sexual orientation discrimination, including sexual harassment and other recognized subsets of sex

discrimination.

8

The lead dissent rejects this “linguistic argument,” Lynch, J., Dissenting Op. at 148 (hereinafter “Lead Dissent”), and advocates

that Title VII’s prohibition must be understood in the context of the prejudices and popular movements animating national

politics at the time the statute was enacted, particularly concerns about the sexual exploitation of women, id. at 142–48. But the

dissent’s account does not and cannot rebut the fact that sexual orientation is a sex-dependent trait.

9

Notably, the government concedes that “as a logical matter ... [y]ou could view sexual orientation as a subset of sex,” however

the government also insists that it could be “view[ed] ... as a distinct category.” Oral Arg. Tr. at 53:17–20.

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10

Lest there be any doubt, this Court’s holding that sexual orientation discrimination is a subset of sex discrimination encompasses

discrimination based on a person’s attraction to people of the opposite sex, same sex, or both.

11

This holding is easily operationalized. A standard jury instruction in a Title VII case alleging sex discrimination informs the jury

that a plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant intentionally discriminated

against the plaintiff because of sex, meaning that the plaintiff’s sex was a motivating factor in the defendant’s decision to take

the alleged adverse employment action against the plaintiff. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-2(m). In a case alleging sexual

orientation discrimination under Title VII, an instruction should add that “because of sex” includes actions taken because of

sexual orientation.

12

Both the Department of Justice and the EEOC have filed amicus briefs in this case, the former in support of defendants and the

latter in support of Zarda. Because EEOC attorneys represent only the Commission, 42 U.S.C. § 2000e-4(b)(2), while the

Department of Justice has litigating authority on behalf of the United States, 28 U.S.C. § 517, this opinion refers to the

Department of Justice as “the government.”

13

The lead dissent trivializes the role of sex as a motivating factor by suggesting that an employer who discriminates on the basis of

sexual orientation is merely “noticing” an employee’s gender. Lead Dissent at 156. This argument, which implies that an

employee’s sexual orientation is the primary motivating factor while his or her sex is merely collateral, cannot be squared with

the Supreme Court’s case law. For example, in Manhart, the employer’s argument that it was motivated by employee’s life

expectancy could not save its policy because, irrespective of the employer’s intention or what it claimed to notice, life expectancy

was a function of sex. 435 U.S. at 712–13, 98 S.Ct. 1370.

14

Ironically, the quoted language from Michael M. references instances where men and women are differently situated because of

the discrimination borne by women—the fact that they are assigned parental responsibility at the moment an infant is born, are

generally paid less than men, and are excluded from positions that are necessary for subsequent promotions. 450 U.S. at 469,

101 S.Ct. 1200 (collecting cases reflecting “the special problems of women” (internal quotation marks omitted) ). The Michael M.

Court acknowledged that, when the sexes are not similarly situated because of discrimination, statutes may impose different

standards in the interest of leveling the playing field. Id. However, Title VII commands equal treatment of sexes and neither the

text of the statute nor Michael M. creates an exception permitting employers to engage in disparate treatment of men and

women simply because they exhibit biological differences.

15

As alleged, Zarda’s termination was plainly an adverse employment action that is covered by Title VII. See 42 U.S.C. § 2000e-

2(a)(1) (“It shall be an unlawful employment practice for an employer ... to discharge ... any individual because of such

individual’s ... sex ....”).

16

Arguably this approach is consistent with the Supreme Court’s analysis in Oncale, which, after acknowledging that male-on-male

harassment can be “because of ... sex,” qualified that not all remarks with “sexual content or connotations” rise to the level of

discrimination. 523 U.S. at 79–80, 118 S.Ct. 998.

17

The lead dissent argues that this conclusion is out of sync with precedents prohibiting sexual harassment and hostile work

environments because, while those cases addressed particular employment “practice[s],” today’s decision extends protection to

“an entirely different category of people.” Lead Dissent at 22. But “persons discriminated against based on sexual orientation” is

no more a new category than “persons discriminated against based on gender stereotypes.” In both instances, a man or woman

is discriminated against based on a trait that is a function of sex and their claims fall squarely within the ambit of a well-

recognized category: “persons discriminated against based on sex.”

18

One amicus and the lead dissent interpret dicta in Price Waterhouse as establishing that sex stereotyping is discriminatory only

when it pertains to traits that are required for the employee’s job. See 490 U.S. at 251, 109 S.Ct. 1775 (observing that “[a]n

employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and

impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not”). We think this narrow reading is

an inaccurate statement of Price Waterhouse, which did not indicate that stereotyping is impermissible only when the

stereotyped trait is required for the plaintiff’s job, and it is directly contradicted by Manhart’s holding that discriminating against

women based on their longer life expectancy, which was certainly not an employment requirement, violated Title VII. 435 U.S. at

710–11, 98 S.Ct. 1370.

19

In this respect, discerning whether a stereotype is based on sex is closely aligned with the comparative test articulated in

Manhart, which can illustrate both (1) whether a trait is a function of sex and (2) whether assumptions about that trait reflect a

40

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gender stereotype.

20

Some amici insist that stereotypes are mere evidence of discrimination and that stereotyping does not, by itself, constitute sex

discrimination. Beyond establishing an adverse employment action, a Title VII plaintiff must always adduce evidence that an

employer discriminated “because of” a protected trait and the Court agrees that sex stereotyping is legally relevant as “evidence

that gender played a part” in a particular employment decision. Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775 (emphasis

omitted). But, Price Waterhouse’s reference to the evidentiary value of stereotyping in no way undercuts it conclusion that an

employer may not “evaluate employees by assuming or insisting that they match[ ] the stereotype associated with their group.”

Id. And, just as the Supreme Court concluded that “an employer who acts on the basis of a belief that a woman cannot be

aggressive, or that she must not be, has acted on the basis of gender,” id. at 250, 109 S.Ct. 1775, this Court concludes that an

employer who acts on the basis of a belief that an employee cannot or should not have a particular sexual orientation has acted

on the basis of sex.

21

The Sixth Circuit has expressed the same observation, albeit in a decision declining to apply Price Waterhouse to sexual

orientation discrimination. See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (“[A]ll homosexuals, by definition,

fail to conform to traditional gender norms in their sexual practices.”).

22

We express no view on whether some exception, either under a different provision of Title VII or under the Religious Freedom

Restoration Act, might immunize from liability discriminatory conduct rooted in religious beliefs.

23

The lead dissent offers a variation on this argument, reasoning that prescriptive views about sexual orientation rest not on “a

belief about what men or women ought to be or do,” but “a belief about what all people ought to be or do,” Lead Dissent at 158,

which is to say, a belief that all people should be attracted to the opposite sex. See also Hively, 853 F.3d at 370 (Sykes, J.,

dissenting) (“To put the matter plainly, heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-

specific stereotype at all.”). It invokes the same idea when it contends that sexual orientation discrimination is not a function of

sex because it “does not differentially disadvantage employees or applicants of either sex.” Lead Dissent at 152. We think the

dissent goes astray by getting off on the wrong foot. The dissent views the “key element” as whether “one sex is systematically

disadvantaged in a particular workplace.” Id. at 158. But Title VII does not ask whether a particular sex is discriminated against; it

asks whether a particular “individual” is discriminated against “because of such individual’s ... sex.” See 42 U.S.C. § 2000e-2(a)(1)

(emphasis added); see also Manhart, 435 U.S. at 708, 98 S.Ct. 1370 (“The statute’s focus on the individual is unambiguous.”).

Taking individuals as the unit of analysis, the question is not whether discrimination is borne only by men or only by women or

even by both men and women; instead, the question is whether an individual is discriminated against because of his or her sex.

And this means that a man and a woman are both entitled to protection from the same type of discrimination, provided that in

each instance the discrimination is “because of such individual’s ... sex.” As we have endeavored to explain, sexual orientation

discrimination is because of sex.

24

The Hively dissent also argued that sexual orientation discrimination is not a form of sex discrimination because it does not

discriminate comprehensively within a sex. In particular, the dissent suggested that in cases where a fired lesbian employee was

replaced by a heterosexual woman a jury would not be able to understand that sexual orientation discrimination is a subset of

sex discrimination. See 853 F.3d at 373. We think that jurors are capable of understanding that an employer might discriminate

against some members of a sex but not others. To wit, the intuitive principle that “Title VII does not permit the victim of

[discrimination] to be told that he [or she] has not been wronged because other persons of his or her race or sex were hired” is

well established in the law. Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). By way of illustration,

had the plaintiff in Price Waterhouse been denied a promotion while a gender-conforming woman was made a partner, this

would have strengthened rather than weakened the plaintiff’s case that she was discriminated against for failing to conform to

sex stereotypes. We see no more difficulty with the concept that an employer cannot discriminate on the basis of sexual

orientation than with the concept that one cannot discriminate based on an employee’s gender non-conformity.

25

In addition, numerous district courts throughout the country have recognized that employers violate Title VII when they

discriminate against employees on the basis of association with people of another national origin or sex, not only with people of

another race. See, e.g., Montes v. Cicero Pub. Sch. Dist. No. 99, 141 F.Supp.3d 885, 900 (N.D. Ill. 2015) (national origin); Morales v.

NYS Dep’t of Labor, 865 F.Supp.2d 220, 242–43 (N.D.N.Y. 2012), aff’d, 530 Fed.Appx. 13 (2d Cir. 2013) (summary order) (race and

national origin); Kauffman v. Maxim Healthcare Servs., Inc., No. 04-CV-2869, 2006 WL 1983196, at *4 (E.D.N.Y. July 13, 2006) (sex

and race); Reiter v. Ctr. Consol. Sch. Dist. No. 26-JT, 618 F.Supp. 1458, 1460 (D. Colo. 1985) (race and national origin).

26

The only exception, not relevant here, is for a “bona fide occupational qualification,” which permits some differential treatment

based on religion, sex, or national origin, but not based on race. 42 U.S.C. § 2000e-2(e).

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27

Indeed, if this were the case, the white employee and the black employee would have cognizable Title VII claims. Cf. Hively, 853

F.3d at 359 n.2 (Flaum, J., concurring) (noting that “even if an employer allegedly discriminates against all homosexual

employees,” the “employer’s discrimination across sexes does not demonstrate that sex is irrelevant, but rather that each

individual has a plausible sex-based discrimination claim” (emphasis added) ).

28

The lead dissent seeks to distinguish Holcomb by arguing that the employer in Holcomb was prejudiced against black people,

whereas here the employer is “hostile to gay men, not men in general.” Lead Dissent at 160. But, this distorts the comparison by

misattributing the prejudice at issue in Holcomb. The basis of the Title VII claim in Holcomb was not the race of the plaintiff’s

wife; rather, the plaintiff, who was white, “suffer[ed] discrimination because of his own race” as a result of the employer’s

“disapprov[al] of interracial association.” 521 F.3d at 139. Accordingly, the prejudice was not against all black people (or all white

people) but against people marrying persons of a different race. That maps squarely onto this case where the prejudice is not

against all men, but people being attracted to persons of the same sex.

29

To the extent that amici are arguing that racism and sexism are necessary elements of a Title VII claim because these beliefs are

invidious or malicious, we think their contentions are misguided. Malice, which the Supreme Court has described as an “evil

motive,” is not required by Title VII, Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 530, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); to the

contrary, it is merely a basis on which an aggrieved employee may seek punitive damages, see 42 U.S.C. § 1981a(b)(1).

30

Because associational discrimination is premised on the employer’s motivation and an employee’s status, an associational

discrimination claim does not require an act that consummates an association. For example, consider a scenario in which

Holcomb had not been married to a black woman but merely expressed an interest in dating black women. If the employer

terminated Holcomb merely on the basis of his desire to date black women, this would still be an instance “where an employee is

subjected to adverse action because an employer disapproves of interracial association,” and “the employee suffers

discrimination because of the employee’s own race.” Holcomb, 521 F.3d at 139. The same is true in the context of sexual

orientation.

31

Because “[t]he prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House

of Representatives,” we have “little legislative history to guide us in interpreting” it. Meritor, 477 U.S. at 63–64, 106 S.Ct. 2399.

32

The fourth case cited by the government involved allegations of discrimination against a transgender individual, a distinct

question not at issue here. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084–87 (7th Cir. 1984). In addition, of the three cases

actually on point, two predate Price Waterhouse, which was decided in May 1989, while the third was issued one month after

Price Waterhouse but made no mention of it. Given that these cases did not have the opportunity to apply a relevant Supreme

Court precedent, even if Congress was aware of them, there was reason for Congress to regard the weight of these cases with

skepticism.

33

We also note that there has been a sea change in the constitutional framework governing same-sex marriage. See generally

Obergefell v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015); United States v. Windsor, 570 U.S. 744, 133 S.Ct.

2675, 186 L.Ed.2d 808 (2013). In the wake of this transformation, the intersection of the modern constitutional framework and

decades-old precedents regarding sexual orientation discrimination under Title VII created a “paradoxical legal landscape” in

which a man could exercise his constitutional right to marry his same-sex partner on Saturday and “then be fired on Monday for

just that act.” Hively, 830 F.3d at 714 (majority). This decision frees this circuit’s jurisprudence regarding sexual orientation from

that paradox.

1

1

Welcomed by some, denounced by others, to be sure.

2

I find it hard to interpret the law to prohibit associational race discrimination but not associational sex discrimination. See Price

Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) (“[T]he statute on its face

treats each of the enumerated categories exactly the same.”). If it weren’t for Simonton, therefore, I would think Holcomb stands

for the proposition that “where an employee is subjected to adverse action because an employer disapproves of [a same-sex]

association, the employee suffers discrimination because of the employee’s own [sex].” Holcomb, 521 F.3d at 139 (emphasis in

42

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

original).

3

Holcomb modified this Circuit’s understanding of Title VII, and represents an “intervening development in the law” that justifies

reconsideration of our prior precedent. See Crown Coat Front Co. v. United States, 363 F.2d 407, 414 (2d Cir. 1966) (Friendly, J.,

concurring) (quoting Miss. River Fuel Corp. v. United States, 314 F.2d 953, 958 (Ct. Cl. 1963) (Davis, J., concurring) ) (explaining

that stare decisis applies even when the Circuit sits en banc, but that overturning precedent is nevertheless justified when the

law has changed), rev’d, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967).

1

In that sense, I agree with Judge Cabranes that the inquiry could end there.

1

For example, Susan B. Anthony herself stated, in a dialogue with Frederick Douglass:

The old anti-slavery school say [sic] women must stand back and wait until the negroes shall be recognized. But we say, if you

will not give the whole loaf of suffrage to the entire people, give it to the most intelligent first. If intelligence, justice, and

morality are to have precedence in the Government, let the question of woman be brought up first and that of the negro last.

Transcript of Annual Meeting of American Equal Rights Association (1869), reprinted in History of Woman Suffrage: 1861–1876,

383 (Elizabeth Cady Stanton et al. eds.) (1882). During the debate over the addition of “sex” to Title VII, it was similarly argued

that if sex was not added to the prohibited categories of discrimination, white women would have fewer protections than black

men. As Representative Martha Griffiths, an early supporter of the amendment, warned during congressional hearings, “A vote

against this amendment today by a white man is a vote against his wife, or his widow, or his daughter, or his sister.” Gillian

Thomas, Because of Sex 2 (2016). And both the civil rights and the women’s movements have persistently overlooked the

intersectional existence of black women and other women of color. See Kimberlé Crenshaw, Mapping the Margins:

Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stanford L. Rev. 1241, 1242–43 & n.3 (1991).

2

Pauli Murray and Mary O. Eastwood, lawyers and women’s rights activists, exemplified that recognition, writing:

[I]n matters of discrimination, the problems of women are not as unique as has been generally assumed. That manifestations

of racial prejudice have been more brutal than the more subtle manifestations of prejudice by reason of sex in no way

diminishes the force of the equally obvious fact that the rights of women and the rights of Negroes are only different phases of

the fundamental and indivisible issue of human rights.

Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232, 235 (1965)

(footnote omitted).

3

In fact, many civil rights and women’s rights organizations were reluctant to support gay rights. See, e.g., Bhaskar A. Shukla,

Feminism: From Mary Wollstonecraft to Betty Friedan 111 (2007) (describing how Betty Friedan had opposed “equating feminism

with lesbianism,” and is said to have coined the anti-lesbian phrase “Lavender Menace” during a 1969 National Organization for

Women meeting). Similarly, some civil rights leaders were uncomfortable with according public prominence to Bayard Rustin, a

gay black man, despite his formidable organizing skills. Rustin was a leading strategist of the civil rights movement, and was the

chief organizer of the 1963 March on Washington. John D’Emilio, Lost Prophet: The Life and Times of Bayard Rustin 2–3 (2003).

Although Rustin spent most of his life fighting for civil rights for African–Americans, “[p]rejudice of another sort, still not named

as such in mid century America, had curtailed his opportunities and limited his effectiveness.” Id. at 326–27 (2003).

4

For example, at the ACLU’s Biennial Conference in 1964, in a speech tellingly titled “Civil Liberties and the War on Crime,” activist

lawyer Harriet Pilpel advocated a constitutionally protected right to privacy as a necessary corrective to the civil liberties abuses

perpetuated by laws “relating to birth control, abortion, compulsory sterilization, prostitution, miscegenation, homosexuality,

fornication and adultery.” Allison Day, Guiding Griswold: Reevaluating National Organizations’ Role in the Connecticut Birth

Control Cases, 22 Cardozo J. L. & Gender 191, 216–18 & n.204 (2016); see also Samuel Walker, In Defense of American Liberties: A

History of the ACLU 312 (1990) (crediting Pilpel’s speech as the first substantive introduction of gay rights to the ACLU’s agenda).

Pilpel’s argument was not based on equal protection, and made no claim that the criminalization of same-sex relations

constituted a form of sex discrimination or gender bias.

5

By contrast, by the early 1970s, when Congress finally got around to proposing the Equal Rights Amendment (“ERA”) for

ratification, gay issues were at least on the radar screen, albeit only as a talking point of opponents that was quickly disavowed

by the ERA’s supporters. Senator Sam Ervin, who opposed the ERA, purported to be concerned that its broad language might

invalidate laws that “make homosexuality a crime or ... [require states to recognize] the right of a man to marry another man or

the right of a woman to marry a woman.” 118 Cong. Rec. 9,315 (1972). Senator Birch Bayh, the chief sponsor of the ERA,

hastened to deny that the Amendment would have any such effect, reassuring the Senate that the ERA would require only that

“if a State legislature makes a judgment that it is wrong for a man to marry a man, then it must say it is wrong for a woman to

43

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marry a woman.” Id. at 9,331.

6

In the years immediately following the enactment of Title VII, however, even certain prominent officials charged with enforcing it

seemed to take the opposite approach, interpreting the statute, insofar as it prohibited sex discrimination, in the light of the

presumed prejudices of those who adopted it. Franklin Roosevelt, Jr., the first chair of the Equal Employment Opportunity

Commission, believed that the ban on sex discrimination was an inadvertent add-on, and as a result need not be enforced as

strictly as the prohibition on racial discrimination. When asked, at his first press conference as head of the EEOC, “What about

sex?” Roosevelt responded, “Don’t get me started. I’m all for it.” Thomas, supra, at 4. One of the agency’s first executive

directors, Herman Edelsberg, was no better, dismissing the provision as a “fluke” that was “conceived out of wedlock.” Id.

7

Despite my explicit clarity about this point, both the majority, see Maj. Op. at 115 (characterizing “reliance on the principal

concern of our legislators” as “the centerpiece of the dissent’s statutory analysis”) (internal quotation marks omitted), and Judge

Lohier’s concurrence, see Lohier, J. Concurring Op. at 137 (characterizing this opinion as a “call ... to consider what the legislature

would have decided if the issue had occurred to the legislators at the time of enactment”), fail to grasp it. As the text above

makes plain, I do not contend that Title VII is limited by what members of Congress who voted for it privately believed or

intended to prohibit, or might have hoped it would or would not do. The question here is what “discriminate against any

individual ... because of such individual’s ... sex,” 42 U.S.C. § 2000e-2(a)(1), as contrasted to “discriminate against any individual

... because of such individual’s ... sexual orientation,” meant (and continues to mean) to ordinary speakers of English. Legislation

cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example

of the meaning of each is selected, the “plain meaning” of the statute leads to a particular result. No theory of interpretation,

including textualism itself, is premised on such an approach. (No less a textualist than Justice Scalia recognized the point:

“Adhering to the fair meaning of the text ... does not limit one to the hyperliteral meaning of each word in the text.” Antonin

Scalia and Bryan A. Garner, Reading Law 356 (2012) (emphasis in original).) That is because the political and social context of the

words is critical to understanding what it is that the political branches of our government wrote into law. (Justice Scalia again:

Because most common English words “have a number of dictionary definitions,” a court should ordinarily “assume the

contextually appropriate ordinary meaning.” Id. at 70 (emphasis added).)

8

As the Supreme Court has repeatedly instructed, “[i]t is a ‘fundamental canon of statutory construction’ that, ‘unless otherwise

defined, words will be interpreted as taking their ordinary, contemporary, common meaning.’ ” Sandifer v. U.S. Steel Corp., –––

U.S. ––––, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014), quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d

199 (1979). It is worth noting, moreover, that, because legislation is a fundamentally political process, the political context of

legislation, and the way in which language is (or is not) used in the public debate over proposed legislation, can be useful in

understanding that meaning.

9

The majority agrees, at least “arguendo.” Maj. Op. at 107 n.2. Issues about how to define who falls into which gender, or whether

the division of humanity into two sexes or genders is oversimplified as applied to persons who identify as transgender or gender

fluid or bigendered are not before us today, and neither the majority nor the plaintiffs nor their amici contend that gay and

lesbian individuals constitute a third or fourth sex. Cf. Hively, 853 F.3d at 355 (Posner, J., concurring) (“It’s true that even today if

asked what is the sex of plaintiff Hively one would answer that she is female or that she is a woman, not that she is a lesbian.

Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity.”).

10

As we have recently been reminded, too many powerful men continue to engage in such practices. See, e.g., J.M.F., What is

Sexual Harassment and How Prevalent Is It?, The Economist (Nov. 24, 2017), https://www.economist.com/blogs/economist-

explains/2017/11/economist-explains-17 (writing that “[i]n recent months myriad women have detailed the sexual harassment

and assault they have experienced in ... Hollywood, Silicon Valley, politics, the media, the armed forces, [and] academia”).

11

Indeed, the overt objectification of female employees was highlighted in debates immediately following the enactment of Title

VII. One industry notorious for sexualizing women was the airline industry, which hired only young, attractive women to serve as

flight attendants. Stephanie Coontz, A Strange Stirring: The Feminine Mystique and American Women at the Dawn of the 1960s

9–10 (2011). Flight attendants were forced to retire upon marriage, or, if they did not marry, once they reached their early

thirties because, as one airline official commented, “the average woman’s appearance has markedly deteriorated at this age.” Id.

at 10. In 1965, responding to public (male) commentary lamenting the idea that Title VII might mean an end to the practice of

hiring only female flight attendants, Representative Martha Griffiths remarked, “If you are trying to run a whorehouse in the sky,

get a license.” Menand, supra.

12

The text of the sex provision, as well as the principle of equal treatment of both sexes makes it as obvious that the less-frequently

encountered situation of sexual harassment of male employees, whether by men or by women, must also be included in Title

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VII’s prohibitions. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) (noting that under Title VII, “[m]ale as well as female employees are protected against discrimination”); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of ... sex’ merely because the plaintiff and the defendant ... are of the same sex”).

13

The quoted statement from Huntington is actually a parenthetical squib glossing a citation to Griggs v. Duke Power Co., 401 U.S.

424, 429–36, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and summarizing the import of a lengthy discussion in that seminal Supreme

Court decision; Huntington itself concerned the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, codified at 42 U.S.C. §§

3601–3631. Huntington, 844 F.2d at 928.

14

Indeed, Judge Cabranes’s concurring opinion suggests that that interpretation is so obvious and straightforward that nothing

more need be said on the subject, and that we can dispense with the various arguments from precedent and principle that the

majority opinion makes in support of its holding. Cabranes, J., Concurring Op. at 135. But that interpretation, in fact, is anything

but obvious.

15

The majority’s reliance on a footnote in Price Waterhouse does nothing to change this fact. Maj. Op. at 123–24. The majority

quotes the portion of the footnote stating that Title VII “on its face treats each of the enumerated categories exactly the same,”

and that the “principles ... announce[d]” by the Price Waterhouse Court with regard to gender “apply with equal force to

discrimination based on race, religion, or national origin,” to support its conclusion that the associational discrimination cases

that have arisen in the context of race should also apply to associational discrimination in terms of gender. Price Waterhouse v.

Hopkins, 490 U.S. 228, 243 n.9, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). While I explain my disagreement with this argument

below, it is worth noting here why this footnote does not change the above analysis. The Court in Price Waterhouse did not state

that every decision with regard to one enumerated group in Title VII must be applied blindly to every other group. Rather, it

emphasized that the “principles” embedded in Title VII should apply with equal force to each enumerated category. Id. It is those

principles that have allowed courts to interpret the various prohibitions in Title VII “against the background of ... the historical

context from which the Act arose,” United Steelworkers of Am., AFL–CIO–CLC v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 61

L.Ed.2d 480 (1979), in upholding distinctions between sexes that would unquestionably be rejected if made between races. And it

is the principle of equal opportunity animating Title VII that I have attempted to distill in this opinion.

16

That of course does not mean that “discriminate against” has any different meaning as applied to “because of ... race” than it

does as applied to “because of ... sex.” What it means is that similar, or even identical, practices may have a different social

meaning and a different economic effect when they distinguish male from female employees than when they distinguish white

from black employees.

17

Despite the Times’s concerns, the Rockettes remain all female more than 50 years after Title VII became law, and the owners of

franchises in the Women’s National Basketball Association are likely not very worried about losing a lawsuit by men who were

not allowed to try out for employment with their teams. Needless to say, dance troupes or professional sports leagues that

employed only whites or blacks would be quite a different matter.

18

To spell the point out: life expectancy, see Maj. Op. at 116–17, citing L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 98

S.Ct. 1370, 55 L.Ed.2d 657 (1978), may be quite literally a mathematical “function of sex,” to the extent that with knowledge of a

person’s sex, one can calculate his or her life expectancy, which will differ from that of a member of the opposite sex. Whatever

the majority means by its assertion that “sexual orientation is a function of sex,” Maj. Op. at 119, it plainly does not mean

anything like that.

19

Although empirical data are hard to come by, there appears to be nothing to suggest that rates of homosexuality differ

significantly between men and women. See, e.g., Gary J. Gates, In U.S., More Adults Identifying as LGBT, Gallup (Jan. 11, 2017),

http://news.gallup.com/poll/201731/lgbt-identification-rises.aspx.

20

Of course, discrimination against a subcategory of members of one sex is also prohibited by Title VII. An employer that hires gay

men but refuses to hire lesbians, or vice versa, would thus be in violation of the statute.

21

See Cal. Gov’t Code § 12940 (California); Colo. Rev. Stat. § 24-34-402 (Colorado); Conn. Gen. Stat. § 46a-60 (Connecticut); Del.

Code Ann. tit. 19, § 711 (Delaware); D.C. Code § 2-1402.11 (District of Columbia); Haw. Rev. Stat. § 378-2 (Hawaii); 775 Ill. Comp.

Stat. 5/2-101, 102 (Illinois); Iowa Code § 216.6; Me. Rev. Stat. tit. 5, § 4571 (Maine); Md. Code Ann., State Gov’t § 20-606

(Maryland); Mass. Gen. Laws ch. 151B, § 4 (Massachusetts); Minn. Stat. § 363A.08 (Minnesota); Nev. Rev. Stat. § 613.330

45

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

(Nevada); N.H. Rev. Stat. Ann. § 354-A:7 (New Hampshire); N.J. Stat. Ann. § 10:5-4 (New Jersey); N.M. Stat. Ann. § 28-1-7 (New Mexico); N.Y. Exec. Law § 296 (New York); Or. Rev. Stat. § 659A.003 (Oregon); R.I. Gen. Laws § 28-5-7 (Rhode Island); Vt. Stat. Ann. tit. 21, § 495 (Vermont); Wash. Rev. Code § 49.60.180 (Washington); Wis. Stat. § 111.321 (Wisconsin).

22

Discrimination in federal employment on the basis of sex (as well as race, color, religion, and national origin) has been prohibited

by executive order since 1969. See Exec. Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 8, 1969). In 1998, the Clinton Administration

did not argue that the prohibition of sex discrimination in that Order already banned, or henceforth would be deemed to ban,

sexual orientation discrimination; rather, like the states that have prohibited such discrimination by all employers, it

straightforwardly added sexual orientation to the prohibited categories. See Exec. Order No. 13087.

23

See Civil Rights Amendments Act, H.R. 166, 94th Cong. (1975); A Bill to Prohibit Discrimination on the Basis of ... Sexual

Preference, H.R. 2667, 94th Cong. (1975); Civil Rights Amendments, H.R. 5452, 94th Cong. (1975); Civil Rights Amendments, H.R.

13019, 94th Cong. (1976); Civil Rights Amendments, H.R. 451, 95th Cong. (1977); Civil Rights Amendments Act, H.R. 7775, 95th

Cong. (1977); Civil Rights Amendments, H.R. 2998, 95th Cong. (1977); Civil Rights Amendments Act of 1977, H.R. 4794, 95th Cong.

(1977); Civil Rights Amendments Act of 1977, H.R. 5239, 95th Cong. (1977); Civil Rights Amendments Act of 1977, H.R. 8269, 95th

Cong. (1977); Civil Rights Amendments Act of 1979, H.R. 2074, 96th Cong. (1979); A Bill to Prohibit Employment Discrimination on

the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979); Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong.; Civil

Rights Amendments Act of 1981, H.R. 3371, 97th Cong.; A Bill to Prohibit Discrimination on the Basis of Sexual Orientation, S.

1708, 97th Cong. (1981); A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong.

(1983); Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong.; Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong.;

Civil Rights Amendments Act of 1985, S. 1432, 99th Cong.; Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong.; Civil Rights

Amendments Act of 1987, S. 464, 100th Cong.; Civil Rights Amendments Act of 1987, H.R. 709, 100th Cong.; Civil Rights

Protection Act of 1988, S. 2109, 100th Cong.; Civil Rights Amendments Act of 1989, S. 47, 101st Cong.; Civil Rights Amendments

Act of 1989, H.R. 655, 101st Cong.; Civil Rights Amendments Act of 1991, S. 574, 102d Cong.; Civil Rights Amendments Act of

1991, H.R. 1430, 102d Cong.; Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong.; Employment Nondiscrimination Act of

1994, S. 2238, 103d Cong.; Civil Rights Act of 1993, H.R. 431, 103d Cong.; Employment Non–Discrimination Act of 1994, H.R.

1430, 103d Cong.; Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong.; Employment Non–Discrimination Act of 1995, S.

932, 104th Cong.; Employment Non–Discrimination Act of 1995, H.R. 1863, 104th Cong.; Civil Rights Amendments Act of 1998,

H.R. 365, 105th Cong.; Employment Non–Discrimination Act of 1997, S. 869, 105th Cong.; Employment Non–Discrimination Act of

1997, H.R. 1858, 105th Cong.; Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong.; Employment Non–Discrimination Act

of 1999, S. 1276, 106th Cong.; Employment Non–Discrimination Act of 1999, H.R. 2355, 106th Cong.; Civil Rights Amendments

Act of 2001, H.R. 217, 107th Cong.; Employment Non–Discrimination Act of 2001, H.R. 2692, 107th Cong.; Employment Non–

Discrimination Act of 2002, S. 1284, 107th Cong.; Equal Rights and Equal Dignity for Americans Act of 2003, S. 16, 108th Cong.;

Employment Non–Discrimination Act of 2003, H.R. 3285, 108th Cong.; Employment Non–Discrimination Act of 2003, S. 1705,

108th Cong.; Civil Rights Amendments Act of 2005, H.R. 88, 109th Cong.; Employment Non–Discrimination Act of 2007, H.R. 2015,

110th Cong.; Employment Non–Discrimination Act of 2007, H.R. 3685, 110th Cong.; Employment Non–Discrimination Act of

2009, H.R. 3017, 111th Cong.; Employment Non–Discrimination Act of 2009, H.R. 2981, 111th Cong.; Employment Non–

Discrimination Act of 2009, S. 1584, 111th Cong.; Employment Non–Discrimination Act, H.R. 1397, 112th Cong. (2011);

Employment Non–Discrimination Act of 2011, S. 811, 112th Cong.; Employment Non–Discrimination Act of 2013, H.R. 1755,

113th Cong.; Employment Non–Discrimination Act of 2013, S. 815, 113th Cong.; Equality Act, H.R. 3185, 114th Cong. (2015);

Equality Act, S. 1858, 114th Cong. (2015).

24

Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69 (8th Cir. 1989); DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608

F.2d 327 (9th Cir. 1979); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979).

25

This is by no stretch of the imagination an outlier position, past or present. As the majority recognizes, until just last year, when

the Seventh Circuit decided Hively, 853 F.3d at 340, this interpretation of the sex provision prevailed, unanimously, in federal

courts of appeals nationwide. Maj. Op. at 107–08 (citing the “consensus among our sister circuits” that “because of ... sex” did

not cover sexual orientation, and listing eight Court of Appeals decisions so holding). Specifically, eleven Circuit Courts, including

ours, had considered the question, and all had concluded that, by its terms, Title VII does not prohibit sexual orientation

discrimination. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398

F.3d 211, 217–18 (2d Cir. 2005); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Wrightson v. Pizza Hut of

Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT & T Mobility, LLC,

679 F.3d 464, 471 (6th Cir. 2012); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 708 (7th Cir. 2000);

Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); DeSantis, 608 F.2d at 329–30; Medina v. Income Support

Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017). As noted above,

the EEOC had also concluded that sexual orientation fell “outside the purview of Title VII.” Dillon, 1990 WL 1111074, at *3. It was

46

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

not until 2015 that the EEOC ruled, for the first time, that Title VII should be interpreted to cover sexual orientation, Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at *5 (July 15, 2015), and its position is opposed by the Department of Justice, which also has responsibility for enforcing statutes prohibiting sex discrimination. See Brief of the United States as Amicus Curiae 1.

26

The same type of discrimination could affect men in a job environment in which stereotypically “feminine” traits such as empathy

are required. On the authority of Price Waterhouse, Title VII would prohibit an employer from discriminating against male social

workers in hiring or promotion either based on a stereotypical assumption that men are in general insufficiently caring or

because of a prejudice against men who do display such putatively feminine qualities.

27

Other than the Seventh Circuit’s decision in Hively, 853 F.3d at 347–49, no federal appellate court has applied this theory outside

of the context of racial discrimination cases.

28

The majority quotes this passage from Barrett, italicizing “protected class,” in an effort to suggest that the Sixth Circuit, like the

Seventh, has applied this principle to sex discrimination. Maj. Op. at 124. It has not. Barrett was a race discrimination case. To the

extent that the formulation used could be read to extend beyond race, it is dictum. As will be made clear momentarily, it is not

dictum to which I object, but it is one that, properly understood, has no application to the present case.

29

Furthermore, the principle that prohibitions against discrimination equally protect members of the socially dominant group in

situations in which they are victims of discrimination would apply the same rule to a Jewish or black employer who discriminated

against Jewish or black employees who married or associated with Christians or whites.

30

The majority twits “[c]ertain amici” for failing to offer “empirical support” for a comparable assertion. Maj. Op. at 126. I doubt

that a fair-minded reader needs any for the proposition I have stated.

31

Sociologists have theorized that individuals with authoritarian personalities are most likely to be prejudiced against marginalized

groups because they are rigid thinkers who obey authority, see the world as black and white, and enforce strict adherence to

social hierarchies. Theodor W. Adorno et al., The Authoritarian Personality 228 (1st ed. 1950).

32

This is not to deny that such legislation may be supported in part by the hope that once individuals from different backgrounds

have occasion to interact with one another, they will see beyond stereotypes and preconceived notions about how an entire

class of people “is,” and the ignorance and bigotry that initially motivated discrimination will be lessened. But any such purpose

cannot warrant extending the categories of discrimination that Congress has outlawed to any other category that shares similar

“roots” to prohibited practices.

33

Both the majority, see Maj. Op. at 131 n.33, and Judge Sack, see Concurring Op. of Sack, J., at 135, cite these dramatic, and to me

welcome, changes in the law. But these changes, both legislative and constitutional, stem from changes in social attitudes toward

gay people, not from any change in, or improved understanding of, the meaning of “sex discrimination.”

34

That is particularly noteworthy given that one of the pioneering academic assertions of a right to same-sex marriage argued that

the prohibition of discrimination based on sex in the Equal Rights Amendment (then before the states for ratification) would

invalidate laws prohibiting same-sex marriage. Note, The Legality of Homosexual Marriage, 82 Yale L.J. 573, 583–88 (1973).

35

Scholars have noted that an exceedingly small fraction of the population could conceivably block ratification of a constitutional

amendment, despite overwhelming majority support for such an amendment. See, e.g., Akhil Reed Amar, Philadelphia Revisited:

Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1060 (1988).

36

A significant exception is the Thirteenth Amendment, which “[b]y its own unaided force ... abolished slavery, and established

universal freedom.” Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883); see Jones v. Alfred H. Mayer Co., 392 U.S.

409, 437–44, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (explaining that the Amendment reaches, and authorizes Congress to reach in

implementing legislation, private conduct).

37

The majority notes the same “paradox.” Maj. Op. at 131 n.33.

38

For the record, I note that I fully agree with the majority’s discussion of our jurisdiction, Maj. Op. at 109–11.

47

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2018) 130 Fair Empl.Prac.Cas. (BNA) 1245, 102 Empl. Prac. Dec. P 45,990

1

In relevant part, Title VII renders it an unlawful employment practice “to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1).

2

Notably, all three states in this Circuit have prohibited workplace discrimination on the basis of sexual orientation, as have

nineteen other states and the District of Columbia, all through legislation, and not judicial reinterpretation of existing

prohibitions on sex discrimination. Under New York law, Zarda was thus able to present his claim that he was subject to

workplace discrimination on the basis of his sexual orientation to a jury. The jury decided in favor of his former employer,

Altitude Express.

End of Document

48

 
 NO.
In the Supreme Court of the United States
ALTITUDE EXPRESS, INC., et al., Petitioners,
v. MELISSA ZARDA, et al.,
Respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit
PETITION FOR WRIT OF CERTIORARI
SAUL D. ZABELL Counsel of Record
RYAN T. BIESENBACH ZABELL & ASSOCIATES, P.C. 1 Corporate Drive, Suite 103 Bohemia, New York 11716 T: (631) 589-7242 F: (631) 563-7475 SZabell@laborlawsny.com
Counsel for Petitioners
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
QUESTION PRESENTED
Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

ii
PARTIES TO THE PROCEEDING
Petitioners, defendants below, are Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard.
Respondents, plaintiffs below, are 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.
RULE 29.6 STATEMENT
Petitioner, Altitude Express, Inc., formerly doing business as Skydive Long Island, was a business corporation organized and existing under the laws of the State of New York. It was not a government entity, there were no parent corporations, nor did any publicly held corporation hold 10% or more of its stock.

iii
TABLE OF CONTENTS QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELEVANT STATUTORY PROVISION . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 I. THE UNDERLYING EVENTS . . . . . . . . . . . . . . . 2 II. THE DISTRICT COURT PROCEEDINGS . . . . . 3 III. THE APPELLATE PROCEEDINGS . . . . . . . . . 6 REASONS FOR GRANTING THE WRIT . . . . . . . . 9 I. THE COURTS OF APPEALS AND
FEDERAL AGENCIES REMAIN DIVIDED ON THIS QUESTION . . . . . . . . . . . . . . . . . 11 II. THE SECOND CIRCUIT DECISION DOES NOT FOLLOW FROM A FAIR INTERPRETATION OF TITLE VII . . . . . . 14 III. THE METHODOLOGY APPLIED BY THE SECOND CIRCUIT IN EXPANDING THE SCOPE OF TITLE VII IS FLAWED . . . . . . 23

iv
A. The “But For” Test Is Not an Appropriate Methodology for Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Sexual Orientation Discrimination Is Not, Ispso Facto, Gender Stereotyping under Price Waterhouse . . . . . . . . . . . . . . . . . . . 27
C. Theories of “Associational Discrimination” Do Not Allow for a Judicial Expansion of Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. THIS CASE IS THE APPROPRIATE VEHICLE FOR RESOLVING THE QUESTION PRESENTED . . . . . . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
APPENDIX
Appendix A Opinion on Rehearing in the United States Court of Appeals for the Second Circuit (February 26, 2018) . . . . . . . . . . . App. 1
Appendix B Opinion in the United States Court of Appeals for the Second Circuit (April 18, 2017) . . . . . . . . . . . . App. 141
Appendix C Judgment in the United States District Court for the Eastern District of New York (October 28, 2015) . . . . . . . . . . App. 154

v
Appendix D Order on Rehearing En Banc in the United States Court of Appeals for the Second Circuit (May 25, 2017) . . . . . . . . . . . . . App. 156
Appendix E Transcript of Telephonic Hearing Before Honorable Joseph F. Bianco in the United States District Court, Eastern District of New York (March 28, 2014) . . . . . . . . . . . App. 158
Appendix F EEOC Charge . . . . . . . . . . . . . . App. 177

vi
TABLE OF AUTHORITIES
CASES
Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) . . 4, 5, 7, 13, 23
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) . . . . . . . . . . . . . . . . 12
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) . . . . . . . . . . . . . . . 19
City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978) . . . . . . . . . . . 24, 25
DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979) . . . . . . . . . . . . . . . 19
Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074 (Feb. 14, 1990) . . . . . . . . . . . . . . . . . . . 22
Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), , cert denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). . . 13, 31
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . . . 19
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) . . . . . . . . . . . . . . . . . . . . . . 22
Gross v. FBL Fin. Services, Inc., 557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . 24
Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000) . . . . . . . 12

vii
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . . 18
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) . . . . . . . . . . . . . . . . . . . . 15
Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985) . . . . . . . . . . . . . . . . . . . . . . 15
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) . . . . . . . . . . . . . . . 12
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) . . . . . . . . . . . passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) . . . . . . . . . . . . . . . . 29
I.N.S. v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . 10
Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . 19
Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 29
Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005) . . . . . . . . . . . . . 13
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998, 140 L.Ed.2d 201 (1998) . . . . . . . . . . . . . . . . 12, 18
Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986) . . . . . . . . . . . . . . 29

viii
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . . 19
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . 15, 22, 27, 28
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) . . . . . . . . . . . . . . 13
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . 6
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014) . . . . . . . . . . . . . . . . . . . . . 14
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) . . . . . . . . . . . 4, 5, 6, 12
Stanard v. Olesen, 74 S. Ct. 768 (1954) . . . . . . . . . . . . . . . . . . . . . . 15
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) . . . . . . . . . . . . . . . 29
Texas Department of Housing & Community Affairs v. Inclusive Communications Project, Inc., 135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . . . . . 19
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) . . . . . . . . . . . . . . . . . . . . . . 24
Vasquez v. Hillery, 474 U.S. 254 (1986) . . . . . . . . . . . . . . . . . . . . . . 19
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) . . . . . . . . . . . . . . . 12

ix
Victory Carriers, Inc v. Law, 404 U.S. 202 (1971) . . . . . . . . . . . . . . . . . . . . . . 15
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) . . . . . . . . . . . . . . . . . . . . . . 22
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989) . . . . . . . . . . 12, 13, 19
Wrightson v. Pizza Hut of Am., 99 F.3d 138 (4th Cir. 1996) . . . . . . . . . . . . . . . . 12
Zambrano-Lamhaouhi v. New York City Bd. Of Educ., 866 F. Supp. 2d 147 (E.D.N.Y. 2011) . 6
CONSTITUTION, STATUTES, REGULATIONS, LEGISLATIVE MATERIAL, AND EXECUTIVE ORDERS
U.S. Const. art. I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . 11
5 C.F.R. § 300.103(c) . . . . . . . . . . . . . . . . . . . . . . . . 11
5 U.S.C. § 2302(b)(10) . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. § 249(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . passim
42 U.S.C. § 2000e(k) . . . . . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 2000e-2(k) . . . . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . . 22, 23
42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . 13

x
42 U.S.C. § 2000e-5(g)(2) . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 13925(b)(13)(A) . . . . . . . . . . . . . . . . . . 11
New York State Human Rights Law, NY EXEC. LAW § 296, et seq. . . . . . . . . . . . . . . . . . . . . . . 4, 6
A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975) . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Act of 1991, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) 19, 22
Civil Rights Act of 1993, H.R. 431, 103d Cong. (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments of 1975, H.R. 166, 94thCong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

xi
Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 451, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1979, H.R. 2074, 95th Cong. (1979) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20

xii
Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1985, S. 1432, 99th Cong. (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, H.R. 709, 100tth Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1989, H.R. 655, 101st Cong. (1989) . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1989, S. 47, 101st Cong. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Civil Rights Amendments Act of 1991, S. 574, 102nd Cong. (1991) . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995) . . . . . . . . . . . . . . . . . . . . . . . 21

xiii
Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong. (1998) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong. (1999) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2003, H.R. 214, 108th Cong. (2003) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005) . . . . . . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong. (1994) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1995, S. 932, 104th Cong. (1995) . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong. (1996) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1997, H.R. 1858, 105th Cong. (1997) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1997, S. 869, 105th Cong. (1997) . . . . . . . . . . . . . . . . . 21

xiv
Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong. (1999) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong. (1999) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong. (2001) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2003, S. 1705, 108th Cong. (2003) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2003, H.R. 3285, 108th Cong. (2003) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (2007) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2009, S. 1584, 111th Cong. (2009) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2011, H.R. 1397, 112th Cong. (2011) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011) . . . . . . . . . . . . . . . . . 21

xv
Employment Non-Discrimination Act of 2013, S. 815 113th Cong. (2013) . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013) . . . . . . . . . . . . . . . . . . 21
Equality Act of 1974, H.R. 14752, 93d Cong. (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Equality Act, H.R. 3185, 114th Cong. (2015) . . . . . 21
Equality Act, S. 1858, 114th Cong. (2015) . . . . . . . 21
Equality Act, H.R. 2282, 115th Cong. (2017) . . . . . 21
Equality Act, S. 1006, 115th Cong. (2017) . . . . . . . 21
Exec. Order 13,672 (July 21, 2014) . . . . . . . . . . . . 11
Exec. Order 13,087 (May 29, 1998) . . . . . . . . . . . . 11
OTHER AUTHORITIES
The American Heritage Dictionary of the English Language (1st ed. 1969) . . . . . . . . . . . . . . . . . . . 16
The American Heritage Desk Dictionary (5th ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15- 3775 (2d Cir. July 26, 2017), 2017 WL 3277292 . . . . . . . . . . . . . . . 14
Dictionary.com, accessed May 2, 2018 . . . . . . . 16, 17
The Federalist No. 47, (James Madison) (Carey & McClellan eds., 2001) . . . . . . . . . . . . . . . . . . . . . 10

xvi New Oxford American Dictionary (3d ed. 2010) . . 16 Oxford English Dictionary (2009 ed.) . . . . . . . . . . . 17

1
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners, Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard (collectively, “Petitioners”), respectfully petition this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit.
OPINIONS BELOW
The en banc opinion of the United States Court of Appeals for the Second Circuit (App. 1-140) is published at 883 F.3d 100. The per curium opinion of the Appellate Court (App. 141-153) is published at 855 F.3d 76. The order of the District Court (App. 154-156) is published at 855 F.3d 76.
JURISDICTION
The judgment of the court of appeals was entered on February 26, 2018. (App. 1-140). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISION
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII), provides in pertinent part: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of

2
such individual’s race, color, religion, sex, or national origin.”
STATEMENT OF THE CASE
I. THE UNDERLYING EVENTS
In the summer of 2010, Rosanna Orellana (“Orellana”) and her boyfriend, David Kengle (“Kengle”), went skydiving at Altitude Express. App. 11-12, 144-45. Each purchased tandem skydives, in which the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client so that the instructor can deploy the parachute and supervise the jump. Donald Zarda was Orellana’s instructor.1 Id. at 144-45.
At some point during the experience, Zarda informed Orellana that he was homosexual and “ha[d] an ex-husband” Id. at 12, 145. After a successful skydive, Orellana told Kengle that Zarda had inappropriately touched her in a flirtatious manner and disclosed his sexual orientation in an effort to excuse his otherwise inappropriate behavior. Id. at 12. Zarda alleges that he often informed female clients of his sexual orientation to allay any awkwardness that they may have felt about being strapped to a man for a tandem skydive. Id. at 145. Upon hearing about Zarda’s inappropriate touching, Kengle called Altitude
1 Donald Zarda died in a skydiving accident after the District Court awarded partial summary judgment to Petitioners, but prior to trial on his remaining claims. The executors of his estate were substituted in his place. App. at 8. Zarda and the executors of his estate are referred to collectively as “Zarda”.

3
Express and its owner, Ray Maynard, to complain. Id. at 12. Zarda, who had a history of similar complaints of inappropriate behavior, was terminated shortly thereafter. Id. at 145.
One (1) month after being terminated, Zarda filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. at 12. In his EEOC charge, Zarda stated “[he was] not making this charge on the grounds that [he] was discriminated on the grounds [sic] of [his] sexual orientation. Rather . . . in addition to being discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.” Id. at 14-15. Moreover, Zarda claimed that “[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” Id. at 12.
II. THE DISTRICT COURT PROCEEDINGS
On September 23, 2010, Zarda brought suit in the United States District Court for the Eastern District of New York alleging, inter alia, sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of the New York State

4
Human Rights Law, NY EXEC. LAW § 296, et seq. (“NYSHRL”).2 App. 144. Citing to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), overruled by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), Petitioners moved for summary judgment. Id. at 12-13. On March 28, 2014, the District Court (Bianco, J.) determined that there was a genuine dispute of material fact regarding the reason for Zarda’s termination and concluded that Zarda was entitled to a trial limited to his pending state-law cause of action. Id. at 13. By contrast, Zarda’s Title VII claim was dismissed because he failed to establish a prima facie case of sex stereotyping discrimination under Title VII. Id. Notably, in an oral decision the District Court rejected Zarda’s familiar sex stereotyping argument, stating, “[t]here’s simply no evidence to believe that that stereotype was motivating Mr. Maynard in this situation. There’s no, for example there’s no evidence of comments, there’s no female comparators who were treated differently. There is literally nothing to support that theory.” App. at 162. In fact, Zarda had testified under oath that he was “masculine in appearance.” App. at 164.
While Zarda’s remaining claims were still pending, the EEOC issued its decision in Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015). In Baldwin, the EEOC took the position that “allegations of discrimination on the basis
2 Zarda also alleged violations of state and federal laws related to overtime and minimum wage. App. 144. Although nongermane to the issues herein, Zarda’s overtime and minimum wage claims were ultimately dismissed. App. at 154, 169.

5
of sexual orientation necessarily state a claim of discrimination on the basis of sex.” 2015 WL 4397641 at *10. In so holding, the EEOC identified three (3) ways for a claimant to illustrate what it described as the “inescapable link between allegations of sexual orientation discrimination and sex discrimination.” Id. at *5. First, sexual orientation discrimination “is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. Second, it is “associational discrimination” because “an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Id. at *6. Third, sexual orientation discrimination “necessarily involves discrimination based on gender stereotypes,” most commonly, “heterosexually defined gender norms.” Id. at *7–8 (internal quotation marks omitted). Shortly after the publication of Baldwin, Zarda moved to have his Title VII claim reinstated. App. at 14. The District Court denied the motion, concluding that Simonton, supra, remained binding precedent and barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII. Id.
All facts forming the basis of Zarda’s putative sexual orientation claim arising under Title VII were tried before a jury of his peers within the context of the

6
NYSHRL.3 Id. Upon the completion of a fair and proper trial, Zarda’s remaining claims were determined to be unfounded and dismissed with prejudice. Id. at 154-55. Zarda appealed.
III. THE APPELLATE PROCEEDINGS
On April 18, 2017, a unanimous panel of the Second Circuit affirmed, inter alia, the District Court’s holding in regard to Zarda’s Title VII claim. Id. at 153. The per curium panel noted that Zarda did not appeal the trial court’s determination that he failed to establish the requisite proximity between his termination and his failure to conform to sex stereotypes. Id. at 150. Rather, Zarda requested that the Second Circuit reconsider its long-held interpretation of Title VII to now hold the statute’s prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation”. Id. at 144. The panel, however, declined to revisit Simonton, supra, stating that Second Circuit precedent could only be overturned by a decision of the court sitting en banc. Id. at 149.
Zarda petitioned the Second Circuit for a rehearing en banc. His petition was granted by a majority of the active judges of the Circuit Court. Id. at 156-57. Consequently, the parties were instructed to brief only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit sexual orientation through
3 Notably, Zarda’s gender stereotyping claims brought under the NYSHRL were subject to the identical analysis as those brought under Title VII. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n. 10 (2d Cir. 2011); Zambrano-Lamhaouhi v. New York City Bd. Of Educ., 866 F. Supp. 2d 147, 159 (E.D.N.Y. 2011).

7
its prohibition of discrimination ‘because of . . . sex’?”. Id. at 157.
On February 26, 2018, the en banc decision of the Second Circuit vacated the District Court’s judgment on Zarda’s Title VII claim and remanded the case for further proceedings. App. at 61.4 Overturning Simonton, supra, the en banc majority held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII. Id. at 20. The en banc majority did not contest the principle “that it is not ‘even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation.” Id. at 23, 137. Rather, the majority breaks from typical or customary statutory analysis and states that when interpreted in light of the recognition of sexual harassment and hostile work environment claims, “the broad language Congress used” in Title VII must necessarily be read to apply “to any practice in which sex is a motivating factor.” Id. at 59. Echoing the holdings in Baldwin, supra, and Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339 (7th Cir. 2017), the majority buttresses its conclusion on three (3) grounds:
4 The Second Circuit decision affirmed the judgment of the District Court in all other respects. See generally, App. at 3.

8
[S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted . . . Sexual orientation discrimination is also based on assumption of stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.
Id. at 60.
Judge Lynch heads the dissenting opinions. Id. at 72-136. Based principally on a recitation of the pre and post-enactment legislative history of Title VII, Judge Lynch’s dissent reasons that the original public meaning of “sex” in text of Title VII – which must invariably be the lodestar in statutory analysis – cannot reasonably be read to include sexual orientation as protected by the statute. Id. He continues, stating the majority attempts to “shoehorn sexual orientation discrimination into [Title VII’s] verbal template of discrimination based on sex” as an oversimplification of the statute:
Same-sex attraction is not “a function of sex” or “associated with sex” in the sense that life expectancy or childbearing capacity are. A

9
refusal to hire gay people cannot serve as a cover means of limiting employment opportunities for men or for women as such; a minority of both men and women are gay, and discriminating against them discriminates against them, as gay people, and does not differentially disadvantage employees or applicants of either sex.
Id. at 104 (emphasis original). The dissenting opinions further summarize the majority’s overreaching as a “chip[ping] away at the democratic and rule-of-law principles on which or system of governance is founded – the very principles we rely on to secure the legitimacy and the efficacy of our laws, including antidiscrimination legislation.” Id. 138 (Livingston, J., dissenting).
REASONS FOR GRANTING THE WRIT
The Court should grant this Petition because it presents a question of heightened significance over which there exists a growing divide amongst the Circuit Courts and provides an ideal vehicle for addressing this question.
At its core, this is a case of statutory construction. Although, to be sure, it is emblematic of the zeitgeist in American conscience and law respecting gender and sex. It demonstrates, inter alia, America’s ever evolving attitudes toward the civil rights of gay, lesbian, and bisexual individuals.5 Perhaps it was with an attuned
5 These terms are used interchangeably by use of the term “sexual orientation.”

10
sensitivity to these developments that the Second Circuit, joining the Seventh and the EEOC, departed from more than fifty (50) years of established precedent in reaching the conclusion that sexual orientation is among the enumerated classes of individuals protected by Title VII as a subset of “sex” discrimination.
Laudable as the ends may be, the means deployed by the Second Circuit nonetheless circumvent the immutable legislative process by which we remain bound to govern. As Judge Sykes set forth in the main dissent in Hively, these recent departures are “a judgeempowering, common-law decision method that leaves a great deal of room for judicial discretion. . . . Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges.” Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339, 360 (7th Cir. 2017) (Sykes, J. dissenting); see also The Federalist No. 47, at 251-52 (James Madison) (Carey & McClellan eds., 2001) (quoting Montesquieu “Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.’”). (emphasis original); I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) (noting that “hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of tits power, even to accomplish desirable objectives, must be resisted.”).

11
As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit. However, this cannot be achieved at the expense of compromising our democratic process. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. See U.S. Const. art. I, § 7. Statutory emendation by the judiciary cannot be reconciled with this construct.
Thus, the question before this Court is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulation, or employer action: Congress and the Executive Branch have acted in this regard by placing prohibitions on such discrimination in a number of differing contexts. See, e.g., 18 U.S.C. § 249(a)(2) (hate crimes); 42 U.S.C. § 13925(b)(13)(A) (certain federal funding programs); Exec. Order 13,672 (July 21, 2014) (government contracting); Exec. Order 13,087 (May 29, 1998) (federal employment); 5 C.F.R. § 300.103(c) (nonperformance-related treatment under the Civil Service Reform Act, 5 U.S.C. § 2302(b)(10)). Rather, what must be resolved is whether, as a matter of law, Title VII encompasses sexual orientation discrimination. The answer remains, as it has, no.
I. THE COURTS OF APPEALS AND FEDERAL AGENCIES REMAIN DIVIDED ON THIS QUESTION
The Second Circuit’s en banc majority holding that sexual orientation is a protected class under Title VII as a proxy for “sex” is the most recent irreconcilable

12
split on this issue. Prior to the Second Circuit’s decision, the Seventh Circuit was the lone appellate court to hold that sexual orientation is protected as a form of sex discrimination under Title VII. See Hively, 853 F3d 339. These recent holdings are in conflict with every other Circuit that has addressed this issue.
In fact, the distinction between “sex” and “sexual orientation” within the scope of Title VII is broadly accepted by courts nationwide. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“Title VII does not afford a cause of action for discrimination based upon sexual orientation. . . .”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (“[H]arassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.”); Williamson v. A.G. Edwards

13
& Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title VII does not prohibit discrimination against homosexuals.”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s protections, however, do not extend to harassment due to a person’s sexuality. . . . Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”) (internal quotations omitted); Evans v. Georgia Regional Hosp., 850 F3d 1248, 1256–57 (11th Cir 2017), cert denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). Thus, the overwhelming weight of precedent pre-Hively is clear: discrimination based on sexual orientation is not prohibited by Title VII.
Moreover, the two (2) federal agencies empowered to enforce Title VII – the EEOC and the U.S. Department of Justice, see 42 U.S.C. § 2000e-5(f)(1) – have taken opposite positions on this issue. As set forth supra, with Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), the EEOC took the position that sexual orientation is protected under Title VII, the rationale for which has been adopted by the Second and Seventh Circuits. Conversely, the Department of Justice has reinforced the position held be the majority of remaining Circuits.

14
See Brief for the United States as Amicus Curiae Supporting Defendants-Appellees at 1, Zarda v. Altitude Express, Inc., No. 15- 3775 (2d Cir. July 26, 2017), 2017 WL 3277292.
That two Courts of Appeals are in conflict with their sister-Circuits on this issue, and the split amongst the EEOC and the Department of Justice, should, standing alone, compel that this Petition be granted.
II. THE SECOND CIRCUIT DECISION DOES NOT FOLLOW FROM A FAIR
INTERPRETATION OF TITLE VII
The Second Circuit concludes “the most natural reading of [Title VII’s] prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 (2d Cir. 2018). This is neither a fair or accurate reading of the text of Title VII, nor is it true to established precedent.
This Court mandates that statutes be interpreted not by the ebbs and flows of modern language but by reference to the original public meaning of the enactment. Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (citation and internal quotation marks omitted)). Just last Term, this Court unanimously held that the proper role of the judiciary in statutory interpretation is “to apply, not amend, the

15
work of the People’s representatives,” even when reasonable people might believe that “Congress should reenter the field and alter the judgments it made in the past.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). “[I]t is for Congress, not the courts, to write the law,” Stanard v. Olesen, 74 S. Ct. 768, 771 (1954), and where “Congress’ ... decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 427 (1985) (citing Victory Carriers, Inc v. Law, 404 U.S. 202, 216 (1971)). These axioms apply with equal force to Title VII and the circumstances underlying this Petition.
“In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The text of Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . .
42 U.S.C. § 2000e-2(a)(1). Absent from this proscriptive language is the ban on workplace discrimination based on an individual’s sexual orientation. In fact, since its enactment in 1964, the public meaning in Title VII’s

16
“because of . . . sex” has never encompassed a reading that includes “because of . . . sexual orientation.” See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 355 (7th Cir. 2017) (Posner, J., concurring) (“A broader understanding of the word ‘sex’ in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination.”).
To be clear, Title VII does not define discrimination “because of . . . sex.” Yet just as in the present, in 1964 the common, ordinary usage of the term “sex” intended biologically male or female; it did not also refer to sexual orientation. See, e.g., Sex, The American Heritage Dictionary of the English Language (1st ed. 1969) (defining “sex” as “[t]he property or quality by which organisms are classified according to their reproductive functions[;] [e]ither of two divisions, designated male and female, of this classification”); Sex, New Oxford American Dictionary (3d ed. 2010) (defining “sex” as “either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions”); Sex, The American Heritage Desk Dictionary (5th ed. 2013) (defining “sex” as “[e]ither of the two divisions, female and male, by which most organisms are classified on the basis of their reproductive organs and functions[;] [t]he condition or character of being female or male”); Sex, Dictionary.com, accessed May 2, 2018 (defining “sex” as “either the male or female division of a species, especially as differentiated with reference to the reproductive functions[;] the sum of the structural and

17
functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences[;] the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct.”); see also Sexual Orientation, Oxford English Dictionary (2009 ed.) (defining “sexual orientation” as “Originally: (the process of) orientation with respect to a sexual goal, potential mate, partner, etc. Later chiefly: a person’s sexual identity in relation to the gender to whom he or she is usually attracted; (broadly) the fact of being heterosexual, bisexual, or homosexual.”); Sexual Orientation, Dictionary.com, accessed May 2, 2018 (defining “sexual orientation” as “one’s natural preference in sexual partners; predilection for homosexuality, heterosexuality, or bisexuality.”); Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339, n.3 (7th Cir 2017) (Sykes, J., dissenting) (“The term “sexual orientation” does not appear in dictionaries at or around the time of Title VII’s enactment. According to the current definition, it is not synonymous with “sex.”). Thus, to a fluent speaker of the English language, the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation”: The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. Id. at 363.
Invariably, legislation is adopted in response to social problems, whether they be actual or perceived. Legislators adopt and employ language to remediate these problems or accomplish the most good for the most people. The words used in legislation are used for

18
a reason; they often have specific, finite meanings. Of course, the march of time may extend the words beyond what the legislators who voted for the statute fully understood or intended. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”). Read in light of one of the social problems it was enacted to address, however, Title VII “remains a law aimed at gender inequality, and not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice.” Zarda v Altitude Express, Inc., 883 F3d 100, 144 (2d Cir 2018) (Lynch, J., dissenting) (emphasis in original); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”) (Ginsburg, J., concurring).
As set forth supra, apart from the alternate interpretation of Title VII now expounded by the Second and Seventh Circuits, all other Circuits are in lock-step – and have been for decades – in holding sexual orientation is not prohibited under Title VII. This Court has stated that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, [however] it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the

19
sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon an arbitrary discretion.” Patterson v McLean Credit Union, 491 U.S. 164, 172 (1989) (internal citations and quotations omitted); see also Vasquez v. Hillery, 474 U.S. 254, 265 (1986) (stare decisis ensures that “the law will not merely change erratically” and “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals”).
Moreover, it is a well-established interpretive principle that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978); see Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998) (“[T]he force of precedent here is enhanced by Congress’s amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding.”); Texas Department of Housing & Community Affairs v. Inclusive Communications Project, Inc., 135 S. Ct. 2507 (2015). For decades after its initial enactment, courts unanimously held that sexual orientation is not protected by Title VII. By the time that Congress enacted the Civil Rights Act of 1991, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), three (3) Courts of Appeals had ruled that Title VII did not cover sexual orientation. See Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). This precedent

20
remained firm until Hively, supra. Against this backdrop, Congress has neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination. In fact, nearly every Congress since 1974 has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.6
6 See, e.g., Equality Act of 1974, H.R. 14752, 93d Cong. (1974), Civil Rights Amendments of 1975, H.R. 166, 94thCong. (1975), A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975), Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976), Civil Rights Amendments of 1975, H.R. 451, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977), Civil Rights Amendments Act of 1979, H.R. 2074, 95th Cong. (1979), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong.(1979), Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981), Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong.(1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong.(1983), Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983), Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983), Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985), Civil Rights Amendments Act of 1985, S. 1432, 99th Cong. (1985), Civil Rights Amendments Act of 1987, H.R. 709, 100tth Cong. (1987), Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1989, H.R. 655, 101st Cong. (1989), Civil Rights Amendments Act of 1989, S. 47, 101st Cong. (1989), Civil Rights

21
This is not to say that Congress has never acted to address judicial interpretation of Title VII. When this Court held that Title VII’s prohibition on
Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1991, S. 574, 102nd Cong. (1991), Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991), Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993), Civil Rights Act of 1993, H.R. 431, 103d Cong.(1993), Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong.(1994), Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong.(1994), Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995), Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong.(1995), Employment Non-Discrimination Act of 1995, S. 932, 104th Cong.(1995), Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong.(1996), Employment Non-Discrimination Act of 1997, H.R. 1858, 105thCong.(1997), Employment NonDiscrimination Act of 1997, S. 869, 105th Cong.(1997), Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong. (1998), Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong. (1999), Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong.(1999), Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong.(1999), Civil Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001), Employment Non-Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001), Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong. (2001), Civil Rights Amendments Act of 2003, H.R. 214, 108th Cong. (2003), Employment Non-Discrimination Act of 2003, S. 1705, 108thCong. (2003), Employment Non-Discrimination Act of 2003, H.R. 3285, 108th Cong. (2003), Civil Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005), Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007), Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (2007), Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009), Employment NonDiscrimination Act of 2009, S. 1584, 111th Cong. (2009), Employment Non-Discrimination Act of 2011, H.R. 1397, 112th Cong. (2011), Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011), Employment Non-Discrimination Act of 2013, S. 815 113th Cong. (2013), Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013), Equality Act, H.R. 3185, 114th Cong. (2015), Equality Act, S. 1858, 114th Cong. (2015), Equality Act, H.R. 2282, 115th Cong. (2017), Equality Act, S. 1006, 115th Cong. (2017).

22
discrimination “because of . . . sex” did not cover an employer’s exclusion of pregnancy from coverage under a disability-benefits plan, General Elec. Co. v. Gilbert, 429 U.S. 125, 135-40 (1976), Congress abrogated the holding in the Pregnancy Discrimination Act by specifying that Title VII’s prohibition on sex discrimination would be deemed to “include” discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Congress did not otherwise delineate the scope of the term “sex”. This abrogation of judicial application of Title VII was continued by modifications to the framework for disparate-impact claims in response to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), see 42 U.S.C. § 2000e-2(k), and for mixedmotive claims in response to Price Waterhouse v. Hopkins, 490 U.S. 490 U.S. 228 (1989), see 42 U.S.C. § 2000e-2(m), § 2000e-5(g)(2).
In 1991, Congress further amended Title VII. 7 See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). As Judge Lynch eloquently dissented in the appellate opinion, it is the unfortunate reality that “not everything offensive or immoral or economically inefficient is illegal, and if the view that a practice is offensive or immoral or economically efficient does not command sufficiently broad and deep political support to produce legislation prohibiting it, that practice will remain legal.” (Zarda v Altitude Express, Inc., 883 F.3d
7 By the time of the 1991 amendment to the Civil Rights Act, the EEOC had also held that sexual orientation discrimination fell “outside the purview of Title VII.” Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074, at *3 (Feb. 14, 1990).

23
100, 148 (2d Cir. 2018) (Lynch, J., dissenting). Thus, when Congress enacted the Civil Rights Act of 1991 it ratified the settled understanding that Title VII does not bar sexual orientation discrimination. This understanding continues to this day.
III. THE METHODOLOGY APPLIED BY THE SECOND CIRCUIT IN EXPANDING THE SCOPE OF TITLE VII IS FLAWED
Following the same rationale employed by the Seventh Circuit (Hively, supra) and the EEOC (Baldwin, supra), the Second Circuit found sexual orientation protected under Title VII premised on three (3) justifications: (A) sexual orientation discrimination is sex discrimination because it cannot occur “but for” the individual’s sex; (B) sexual orientation falls within Title VII’s prohibition on sex discrimination as a form of sex stereotyping; and (C) sexual orientation discrimination is akin to race-based “associational discrimination”. None passes thoughtful analysis.
A. The “But For” Test Is Not an Appropriate Methodology for Statutory Interpretation
As defined by Title VII, an employer has engaged in “impermissible consideration of . . . sex . . . in employment practices” when “sex . . . was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” 42 U.S.C. § 2000e-2(m). Thus, the critical inquiry in assessing whether an employment practice is in violation of Title VII “because of . . . sex” is whether sex was “a motivating factor in an adverse

24
employment decision.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 182 (2009). Referred to by the Second Circuit as the “comparator test” (App. at 66), a “but for” analysis aides in determining whether “the evidence shows treatment of a person in a manner which but for that person’s [protected characteristic] would be different.” City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (emphasis added) (internal quotations omitted).
The Second Circuit, drawing on the Seventh Circuit’s analysis in Hively, employed the “but for” test to interpret Title VII and concluded that sexual orientation discrimination is a subset of sex discrimination. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 116 (2d Cir. 2018) (majority) (internal citations omitted) (“[T]he Seventh Circuit compared Hively, a female professor attracted to women (who was denied a promotion), with a hypothetical scenario in which Hively was a male who was attracted to women (and received a promotion). Under this scenario, the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination.”).
However, the purpose of the “but for” analysis is to reveal an employer’s motive for taking the challenged action as a factual matter. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013) (“An employee who alleges status-based discrimination

25
under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. Socalled but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.”).
Applying the “but for” test in this manner puts the proverbial cart before the horse by employing hypotheticals to determine first whether sex is a motivating factor in discrimination based on sexual orientation before deciding whether sexual orientation is protected under Title VII. Said another way, the evidentiary “but for” test is a useful technique for discerning motive; it has no proper application in statutory interpretation, the paramount issue herein.
Further, the Second Circuit misapplies the “but for” test in its very application. As the majority stated, “[i]n the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” App. at 34. From its very premise, this application of the “but for” test fails by changing both the sexual orientation and the sex of their hypothetical subject. See City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (describing the “simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be difference.’”). The proper

26
application would be to change the sex, but to otherwise maintain the sexual orientation in applying the “but for” test. As Judge Sykes correctly states in the main dissent in Hively:
As a test for isolating an actual case of sex discrimination, that way of framing the comparative question doesn’t do the trick. Simply put, the comparison can’t do its job of ruling in sex discrimination as the actual reason for the employer’s decision (by ruling out other possible motivations) if we’re not scrupulous about holding everything constant except the plaintiff’s sex. That includes the plaintiff’s sexual orientation. If we’re really serious about trying to isolate whether sex discrimination played a role in a specific employment decision, the test must exclude other factors that may have been decisive.
Hively v. Ivy Tech Community Coll. of Indiana, 853 F.3d 339, 366 (7th Cir. 2017) (Sykes, J., dissenting) (emphasis in original).
Essentially, the “but for” test is being used as an artifice to “interpret” the term “sexual orientation” for use in the context of Title VII. This test has no proper application in discerning the statutory text of Title VII.

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B. Sexual Orientation Discrimination Is Not, Ispso Facto, Gender Stereotyping under Price Waterhouse
Neither Price Waterhouse nor any other decision of this Court establishes an independent cause of action for, or “doctrine” or “theory” of, “sex stereotyping.” Price Waterhouse held only that the presence of gender stereotyping by an employer “can certainly be evidence” of sex discrimination; to prove her case, the plaintiff must always prove that “the employer actually relied on her gender in making its decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, at 251 (1989) (second emphasis added).
Moreover, even if an individual who identifies as homosexual can be the victim of gender stereotyping, it does not necessarily follow that in sexual orientation discrimination is interchangeable with the stereotypes otherwise barred by Price Waterhouse. As this Court explained, Title VII bars gender stereotypes insofar as that particular sort of “sex-based consideration[]” cause “disparate treatment of men and women.” Id. at 251. As Judge Sykes explained in the Hively dissent:
Heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all. An employer who hires only heterosexual employees is neither assuming nor insisting that his female and male employees match a stereotype specific to their sex. He is instead insisting that his employees match the dominant sexual orientation regardless of their

28
sex. Sexual-orientation discrimination does not classify people according to invidious or idiosyncratic male or female stereotypes. It does not spring from a sex-specific bias at all.
Hively v. Ivy Tech Community Coll. of Indiana, 853 F.3d 339, 365–67 (7th Cir. 2017) (emphasis original).
In any event, the per curium panel of the Second Circuit correctly noted that Zarda did not appeal the trial court’s determination regarding his claim of discrimination premised on sex stereotypes. Id. at 150. In fact, the District Court rejected Zarda’s sex stereotyping argument, stating, “[t]here’s simply no evidence to believe that that stereotype was motivating Mr. Maynard in this situation. There’s no, for example there’s no evidence of comments, there’s no female comparators who were treated differently. There is literally nothing to support that theory.” App. at 162. There is thus no validity in the application to this matter to the theory propounded by the en banc majority that sexual orientation discrimination is ipso facto sex stereotyping.
An employer who discriminates based on sexual orientation alone does not run afoul of the sex stereotyping proscribed by Price Waterhouse. Although sex stereotyping is evidence that may support a claim of sex discrimination, it is not, by itself, always sex discrimination and cannot therefore support the proposition that sexual orientation is a proxy for sex under Title VII.

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C. Theories of “Associational Discrimination” Do Not Allow for a Judicial Expansion of Title VII
Sexual orientation discrimination is also not among the type of so-called “associational discrimination” prohibited by Title VII. Translating Loving v. Virginia, 388 U.S. 1 (1967) to the context of Title VII, Circuits to address the question of associational discrimination have done so through the statute’s prohibition on race discrimination. See e.g., Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999); Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888, 892 (11th Cir. 1986).
Loving’s equal-protection holding extends to Title VII racial-discrimination claims because those claims share the same contextual foundation: The racism inherent in anti-miscegenation laws. By contrast, any employer that discriminates against an employee in a same-sex relationship has not engaged in sex-based treatment of women as inferior to men (or vice versa), but rather based upon sex-neutral treatment directed at a distinct status: sexual orientation. As Judge Lynch explained in the lead dissent to the subject Second Circuit decision:
It is more difficult to imagine realistic hypotheticals in which an employer discriminated against anyone who so much as associated with men or with women, though I suppose academic examples of such behavior

30
could be conjured. But whatever such a case might look like, discrimination against gay people is not it. Discrimination against gay men, for example, plainly is not rooted in animus toward “protected third persons with whom [they] associate.” An employer who practices such discrimination is hostile to gay men, not to men in general; the animus runs not, as in the race and religion cases discussed above, against a “protected group” to which the employee’s associates belong, but against an (alas) unprotected group to which they belong: other gay men.
Zarda v. Altitude Express, Inc., 883 F.3d 100, 160 (2d Cir. 2018) (internal citations omitted and emphasis in original).
Thus, in the context of associational discrimination, sexual orientation cannot be substituted for race to achieve the same prohibitions under sex-based discrimination. Holding to the contrary is a judicial amendment to the prohibitions of Title VII.
IV. THIS CASE IS THE APPROPRIATE VEHICLE FOR RESOLVING THE QUESTION
PRESENTED
This case is in the perfect posture for the Court to decide whether Title VII’s prohibitions on discrimination “because of . . . sex” encompass discrimination based on sexual orientation. In answering this question in the affirmative, the Second Circuit not only reversed the District Court’s holding;

31
it overruled decades of established precedent simply to accommodate new legal theories on a hot-button issue. In the course of doing so, the Appellate Court joined the Seventh Circuit in establishing and fostering a divergent minority view that is irreconcilable with the majority.
This case is also uniquely positioned as compared to others addressing this issue. In fact, other cases to reach this level of judicial review have done in the absence of the employer’s involvement. See Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc); Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), cert denied, 138 S. Ct. 557, 199 L Ed 2d 446 (2017).
It is inevitable that this issue will come before the Court time and time again. We respectfully posit that it is time the Court address the growing uncertainty and answer this question to ensure consistent adjudication moving forward.

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CONCLUSION
For the reasons set forth above, a writ of certiorari should be granted.
Respectfully submitted,
SAUL D. ZABELL Counsel of Record
RYAN T. BIESENBACH ZABELL & ASSOCIATES, P.C. 1 Corporate Drive, Suite 103 Bohemia, New York 11716 T: (631) 589-7242 F: (631) 563-7475 SZabell@laborlawsny.com
Counsel for Petitioners Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard
May 29, 2018

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BOSTOCK v. CLAYTON COUNTY, GEORGIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord
—————— * Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda
et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.

2

BOSTOCK v. CLAYTON COUNTY

Syllabus
with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.

Cite as: 590 U. S. ____ (2020)

3

Syllabus

And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference

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Syllabus
that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107

_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE GORSUCH delivered the opinion of the Court.

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Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
I
Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the

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county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “ live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”
While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1). In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018). Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F. 3d 100 (2018). Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of

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their transgender status. 884 F. 3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019).
II
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7).
With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.

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A
The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident

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Opinion of the Court
occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U. S. 204, 211–212 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid.; Nassar, 570 U. S., at 350.
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice. Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1).
As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens “because of ” sex. The statute imposes liability on

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employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . . discriminate against.” By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.
At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice, or an instance of discriminating categorically rather than individually.” Webster’s New Collegiate Dictionary 326 (1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting). On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal

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too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that “it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.” It might have said that there should be no “sex discrimination,” perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not the law we have.
The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so

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equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.
B
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the

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male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.
Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here.

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When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is

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not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).
C
If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents.
In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now,

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these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class.
In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity against women or a “purely habitual assumptio[n] about a woman’s inability to perform certain kinds of work”; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707–708. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But “[t]he statute’s focus on the individual is unambiguous,” and any individual woman might make the larger pension contributions and still die as early as a man. Id., at 708. Likewise, the Court dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the same regardless of her sex. Id., at 711.
In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court

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held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” Id., at 79. But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed.
The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a “life expectancy” adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the

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more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.
Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.
III
What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.
The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes

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in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 3 (ALITO, J., dissenting); post, at 8–13 (KAVANAUGH, J., dissenting).
But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. In Phillips, for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex

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wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.
Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. See post, at 9–12 (ALITO, J., dissenting); post, at 12–13 (KAVANAUGH, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.
What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination

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because of sex, and Title VII liability necessarily followed. Aren’t these cases different, the employers ask, given
that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?
No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.
The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes

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men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.
Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dissenting).
But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however

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they may manifest themselves or whatever other labels might attach to them.
The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post, at 2, 42–43 (ALITO, J., dissenting); post, at 4, 15–16 (KAVANAUGH, J., dissenting).
But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990); see also United States v. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote”).
That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr.

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Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman— we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.
While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Just cast a glance back to Manhart, where it was no defense that the employer sought to equalize pension contributions based on life expectancy. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted. But exactly the same might have been said in Phillips, where motherhood was the added variable.
Still, the employers insist, something seems different here. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be

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necessary to the result if a member of the opposite sex might face the same outcome from the same policy?
What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.
At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly

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changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination.
No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer.
B
Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability?
It might be tempting to reject this argument out of hand.

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This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin v. United States, 449 U. S. 424, 430 (1981). Of course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post, at 40 (ALITO, J., dissenting). But that has no bearing here. “Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy, 562 U. S. 562, 574 (2011). And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address. Oncale, 523 U. S., at 79. But “ ‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). And “it is ultimately the provisions of ” those legislative commands “rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage— not to leave room for courts to recognize ad hoc exceptions”).
Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing

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today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term “vehicle” in 1931 could literally mean “a conveyance working on land, water or air.” McBoyle v. United States, 283 U. S. 25, 26 (1931). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. Ibid. Similarly, in New Prime, we held that, while the term “contracts of employment” today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting) (providing additional examples).
The employers, however, advocate nothing like that here. They do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . . . because of such individual’s . . . sex.” Nor do the competing dissents offer an alternative account about what these terms mean either when viewed individually or in the ag-

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gregate. Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.
That is exactly the sort of reasoning this Court has long rejected. Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s “expected applications” rather than vindicate its “legislative intent.” But the concepts are closely related. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it.
If anything, the employers’ new framing may only add new problems. The employers assert that “no one” in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g., Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from 1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661 (CA9 1977) (addressing claim from 1974). And less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s— might also protect homosexuals from discrimination. See, e.g., Note, The Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–584 (1973).

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Why isn’t that enough to demonstrate that today’s result isn’t totally unexpected? How many people have to foresee the application for it to qualify as “expected”? Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question? How do we account for those who change their minds over time, after learning new facts or hearing a new argument? How specifically or generally should we frame the “application” at issue? None of these questions have obvious answers, and the employers don’t propose any.
One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individual with a disability.’ ” Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 208 (1998). Congress, of course, didn’t list every public entity the statute would apply to. And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons, curiously, some demanded a closer look: Pennsylvania argued that “Congress did not ‘envisio[n] that the ADA would be applied to state prisoners.’ ” Id., at 211–212. This Court emphatically rejected that view, explaining that, “in the context of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id., at 212. As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees

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in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. Cf. post, at 28–35 (ALITO, J., dissenting); post, at 21–22 (KAVANAUGH, J., dissenting).
The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-tobe-determined) group expected in 1964, we’d have more than a little law to overturn. Start with Oncale. How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” 523 U. S., at 79. Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it. Under the employer’s logic, it would seem this was a mistake.
That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission (EEOC) Commissioner observed shortly after the law’s passage, the words of “ ‘the sex provision of Title VII [are] difficult to . . . control.’ ” Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338 (2012) (quoting Federal Mediation Service To Play Role in Implementing Title VII, [1965–1968 Transfer Binder] CCH Employment Practices ¶8046, p. 6074). The “difficult[y]” may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility

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of ) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly.
Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were “unanticipated” at the time of the law’s adoption. In fact, many now-obvious applications met with heated opposition early on, even among those tasked with enforcing the law. In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory. Franklin, 125 Harv. L. Rev., at 1340 (citing Press Release, EEOC (Sept. 22, 1965)). Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances. See, e.g., Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974). And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex. See Phillips v. Martin Marietta Corp., 411 F. 2d 1 (CA5 1969), rev’d, 400 U. S. 542 (1971) (per curiam).
Over time, though, the breadth of the statutory language proved too difficult to deny. By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court held that treating women with children differently from men with children violated Title VII. Phillips, 400 U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. See, e.g., Barnes v. Costle, 561 F. 2d 983,

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990 (CADC 1977). While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post, at 38 (ALITO, J., dissenting), all were hotly contested for years following Title VII’s enactment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. Cf. post, at 21–22 (KAVANAUGH, J., dissenting) (highlighting that certain lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers have us undo every one of these unexpected applications too?
The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.
With that, the employers are left to abandon their concern for expected applications and fall back to the last line

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of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post, at 44–54 (ALITO, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ ” refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices

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might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now

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before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
*
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting.
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

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ALITO, J., dissenting
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of

—————— 1 E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong.,
1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005).
2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019).
3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019).

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discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22

—————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2
and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).”

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(1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.5
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.
I A
Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”6 Ante, at 2. (Appendix A, infra, to

—————— 5 That is what Judge Posner did in the Seventh Circuit case holding
that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en banc). Judge Posner agreed with that result but wrote:
“I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-centuryold statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Id., at 357 (concurring opinion) (emphasis added).
6 The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were assigned at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/cecorner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond

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this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)
In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”).
The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante, at 5.
If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
How then does the Court claim to avoid that conclusion?
—————— to an individual’s sex assigned at birth or sex characteristics.” Ibid. Under these definitions, there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity.

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The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, at 5– 9, 11.
All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U. S. C. §2000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of . . . sex”? Or, to put the same question in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer necessarily discriminated because of biological sex?
The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. See ante, at 24, 27, 30.
The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means.

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Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means. See Part III–C, infra.
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 And individuals who are born with
—————— 7 The EEOC first held that “discrimination against a transgender indi-
vidual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).
8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.

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the genes and organs of either biological sex may identify with a different gender.9
Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . . . inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue.
Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in
—————— Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sexual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”).
9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”).

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and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosexual.” Appendix D, infra, at 88, 101.
At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination.10 And she was right.
The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Contra, ante, at 19. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of
—————— 10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there
was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex”); see also id., at 69 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”).

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sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses.
Trying to escape the consequences of the attorney’s concession, the Court offers its own hypothetical:
“Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” Ante, at 18.
How this hypothetical proves the Court’s point is a mystery. A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female.
The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant

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could not answer the question whether he or she is homosexual without knowing something about sex. If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. See ante, at 18–19.
This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex.
While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. But what it proves is not what the Court thinks. The Court posits:
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” Ante, at 11.
This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex

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against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex.
In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. All these variants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ” Hively, 853 F. 3d, at 350.11 The Second Circuit wrote that sex is necessarily “a factor in sexual orientation” and further concluded that “sexual orientation is a function of sex.” 883 F. 3d 100, 112–113 (CA2 2018) (en banc). Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sexbased consideration.”12 Other briefs state that sexual orientation is “a function of sex”13 or is “intrinsically related to

—————— 11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2
(“[T]here is no reasonable way to disentangle sex from same-sex attraction or transgender status”).
12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern Poverty Law Center et al. as Amici Curiae 7–8.
13 Brief for Scholars Who Study the LGB Population as Amici Curiae in Nos. 17–1618, 17–1623, p. 10.

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sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15
It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.”
Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence?
To be fair, the Court does not claim that Title VII prohibits discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante, at 10. Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.16 And it would do this in the name of high textualism.
—————— 14 Brief for American Psychological Association et al. as Amici Curiae
11. 15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5. 16 Notably, Title VII itself already suggests a line, which the Court ig-
nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex,

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An additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court proclaims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Ante, at 9. That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.” Ibid. By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as 2020 values.
The Court’s remaining argument is based on a hypothetical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “materially identical” except that one is a man and the other is a woman. Ante, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Ante, at 9–10. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be?
The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to
—————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U. S. C. §2000e(k). This definition should inform the meaning of “because of sex” in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women or men.

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members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.
Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a prohibited ground need not be the sole motivation for an adverse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking.
The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” Ante, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of

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labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.
The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante, at 9–10. Rather, the Court needs to show that its label is the correct one.
And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further.
As it turns out, however, there is no standoff. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation.
In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

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Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.
In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is entirely possible for an employer to do just that. “[H]omosexuality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text.
But even if the words of Title VII did not definitively refute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. And to say that the Court’s interpretation is the only possible reading is indefensible.
B
Although the Court relies solely on the arguments discussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted

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by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly.
1
One argument, which relies on our decision in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. See 883 F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d 560, 576–577 (CA6 2018). The argument goes like this. Title VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; therefore, discrimination on either of these grounds is unlawful.
This argument fails because it is based on a faulty premise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination because of “sex,” and the two concepts are not the same. See Price Waterhouse, 490 U. S., at 251. That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See ibid.
Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” Id., at 235–236.

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The main issue in Price Waterhouse––the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence that gender played a part.” Id., at 251.17 And the plurality made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid.
Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sexspecific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes, J., dissenting).
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a
—————— 17 Two other Justices concurred in the judgment but did not comment
on the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id., at 294.

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different matter.
2
A second prominent argument made in support of the result that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., Holcomb v. Iona College, 521 F. 3d 130 (CA2 2008); Parr v. Woodmen of World Life Ins. Co., 791 F. 2d 888 (CA11 1986). And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavorably because he or she is married to, or has an intimate relationship with, a person of the same sex.
This argument totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination. And without taking history into account, it is not easy to see how the decisions in question fit the terms of Title VII.
Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such individual’s race.” 42 U. S. C. §2000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race.
The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination.18 “It would require absolute blindness to the history

—————— 18 Notably, Title VII recognizes that in light of history distinctions on
the basis of race are always disadvantageous, but it permits certain dis-

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of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on ‘racemixing’ was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch, J., dissenting).
Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J., concurring).
3
The opinion of the Court intimates that the term “sex” was not universally understood in 1964 to refer just to the categories of male and female, see ante, at 5, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject.
As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced in Appendix A, infra. Anyone who examines those definitions can see that the primary definition in every one of them refers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addition, some definitions refer to heterosexual sex acts. See

—————— tinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list.

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Random House Dictionary 1307 (“coitus,” “sexual intercourse” (defs. 5–6)); American Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19
Aside from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking? And even if Title VII had that effect, that is not what is at issue in cases like those before us.
That brings us to the two remaining subsidiary definitions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed.); Webster’s Third New International Dictionary 2081 (1966)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape?
Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in Appendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just
—————— 19 See American Heritage Dictionary 1188 (1969) (defining “sexual in-
tercourse”); Webster’s Third New International Dictionary 2082 (1966) (same); Random House Dictionary of the English Language 1308 (1966) (same).

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discussed.
II A
So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. Ibid. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment?
Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (emphasis added).20
Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic
—————— 20 See also Chisom v. Roemer, 501 U. S. 380, 405 (1991) (Scalia, J., dis-
senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them . . . and apply the meaning so determined”).

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community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, judges should ascribe to the words of a statute “what a reasonable person conversant with applicable social conventions would have understood them to be adopting.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397– 2398.
Judge Frank Easterbrook has made the same points:
“Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” Herrmann v. Cencom Cable Assocs., Inc., 978 F. 2d 978, 982 (CA7 1992).
Consequently, “[s]licing a statute into phrases while ignoring . . . the setting of the enactment . . . is a formula for disaster.” Ibid.; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, 916 F. 2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”).
Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a

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distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?
B
The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds.
1
In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and wellunderstood concept, and what it meant was equal treatment for men and women.

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Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. XX, §18 (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. IX, §9; accord, Mont. Const., Art. XI, §9 (1889).
Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” Art. VI, §1 (1890), and then provided specifically that “[i]n none of the public schools . . . shall distinction or discrimination be made on account of sex,” Art. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Washington’s Constitution likewise required “ample provision for the education of all children . . . without distinction or preference on account of . . . sex.” Art. IX, §1 (1889) (emphasis added).
The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” Art. IV, §1 (emphasis added). And in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges.” Ibid.
The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., Amdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights Amendment. As framed in 1921, this proposal forbade all “political, civil or legal disabilities or inequalities on account of sex, [o]r on account of marriage.”

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Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Times, Sept. 16, 1921, p. 10.
Similar terms were used in the precursor to the Equal Pay Act. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against employees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess.
In 1952, the new Constitution for Puerto Rico, which was approved by Congress, 66 Stat. 327, prohibited all “discrimination . . . on account of . . . sex,” Art. II, Bill of Rights §1 (emphasis added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed discrimination in naturalization “because of . . . sex.” 8 U. S. C. §1422 (emphasis added).
In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of . . . sex.” Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (emphasis added).
In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to assure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in government and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis
—————— 21 J. Kennedy, Statement by the President on the Establishment of
the President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004.

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added). In short, the concept of discrimination “because of,” “on
account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22
2
Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day.
For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.

—————— 22 Analysis of the way Title VII’s key language was used in books and
articles during the relevant time period supports this conclusion. A study searched a vast database of documents from that time to determine how the phrase “discriminate against . . . because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (manuscript, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone . . . motivated by prejudice, or biased ideas or attitudes . . . directed at people with that trait in particular.” Id., at 7 (emphasis deleted). In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that particular sex. Id., at 7.

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In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic personality disturbance,” id., at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23
Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 (2008), and in the District of Columbia, a law enacted by Congress made sodomy a felony punishable by imprisonment for up to 10 years and permitted the indefinite civil commitment of “sexual psychopath[s],” Act of June 9, 1948, §§104, 201–207, 62 Stat. 347– 349.24

—————— 23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . . . or wish to change their sexual orientation,” and explaining that “homosexuality . . . by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not considered a mental disorder”); Obergefell v. Hodges, 576 U. S. 644, 661 (2015).
24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. 4–69, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 22764–22779 (1981). Sodomy was not decriminalized in the District until 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 D. C. Reg. 53 (1995), enacted as D. C. Law 10–257.

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This view of homosexuality was reflected in the rules governing the federal work force. In 1964, federal “[a]gencies could deny homosexual men and women employment because of their sexual orientation,” and this practice continued until 1975. GAO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Process 2 (GAO/NSIAD–95–21, 1995). See, e.g., Anonymous v. Macy, 398 F. 2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts).
In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. A 1953 Executive Order provided that background investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). “Until about 1991, when agencies began to change their security policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. See, e.g., Adams v. Laird, 420 F. 2d 230, 240 (CADC 1969) (upholding denial of security clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Webster v. Doe, 486 U. S. 592, 595, 601 (1988) (concluding that decision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA).
The picture in state employment was similar. In 1964, it was common for States to bar homosexuals from serving as teachers. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates

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(or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25
The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code Ann. §§13202, 13207, 13209, 13218, 13255 (West 1960). The teaching certificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (upholding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual conduct on public beach), overruled in part, Morrison v. State Bd. of Ed., 1 Cal. 3d 214, 461 P. 2d 375 (1969).
In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), and this law was used to target homosexual conduct. In 1964, a legislative committee was wrapping up a 6-year campaign to remove homosexual teachers from public schools and state universities. As a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103.
Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”26 See, e.g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in
—————— 25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosex-
ual Persons in the United States, 30 Hastings L. J. 799, 861 (1979). 26 Eskridge, Challenging the Apartheid of the Closet: Establishing
Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981, 25 Hofstra L. Rev. 817, 819 (1997).

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public bathroom). In 1964 and for many years thereafter, homosexuals were
barred from the military. See, e.g., Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U. S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct).
Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS, 387 U. S. 118, 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts.
To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our
—————— 27 Justices Douglas and Fortas thought that a homosexual is merely
“one, who by some freak, is the product of an arrested development.” Boutilier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan, J., dissenting) (based on lower court dissent).

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duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.
The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer, 501 U. S. 380, 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the statute. Ibid. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.
The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means. Ante, at 26. What evidence does it adduce? One complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of the Equal Rights Amendment. Ibid. To call this evidence

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merely feeble would be generous.
C
While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 1970s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, female or something else,”29 apparently first appeared in an academic article in 1964.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time still primarily defined the word “gender” by reference to grammatical classifications. See, e.g., American Heritage Dictionary, at 548 (def. 1(a)) (“Any set of two or more categories, such as masculine, feminine, and neuter, into which words are divided . . . and that determine agreement with or the

—————— 28 Drescher, Transsexualism, Gender Identity Disorder and the DSM,
14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 American Psychological Association, 49 Monitor on Psychology, at
32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 Archives
Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). In his book, Sex and Gender, published in 1968, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii.

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selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi-
viduals who experience what is now termed “gender dysphoria,” i.e., “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.32 DSM–III, at 261–266.
The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,33 and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34
It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.
D 1
The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is
—————— 31 American Psychological Association, 49 Monitor on Psychology, at
32. 32 See Drescher, supra, at 112. 33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins,
N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002).
34 Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)).

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clear, and therefore it simply does not matter whether people in 1964 were “smart enough to realize” what its language means. Hively, 853 F. 3d, at 357 (Posner, J., concurring). According to the Court, an argument that looks to the societal norms of those times represents an impermissible attempt to displace the statutory language. Ante, at 25–26.
The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted.
In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project.
The Court’s unanimous decision in Oncale was thoroughly unremarkable. The Court held that a male employee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. Although the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would immediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). Given these premises, syllogistic reasoning dictated the holding.

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What today’s decision latches onto are Oncale’s comments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. Ante, at 28 (quoting 523 U. S., at 79). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U. S., at 79 (emphasis added).
It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules. These comments are better understood as stating mundane and uncontroversial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”?
Properly understood, Oncale does not provide the slightest support for what the Court has done today. For one thing, it would be a wild understatement to say that discrimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 1964. Whether we like to admit it now or not, in the thinking of Congress and the public at that time, such discrimination would not have been evil at all.
But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the statutory text as it would have been understood in 1964. To

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decide for the defendants in Oncale, it would have been necessary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 1964, the text of Title VII does not support the Court’s holding. And the reasoning of Oncale does not preclude or counsel against our taking those norms into account. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been understood at the time.
2
The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), and Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young children less favorably than men with young children. In Manhart, the employer required women to make larger pension contributions than men. It is hard to see how these holdings assist the Court.
The Court extracts three “lessons” from Phillips, Manhart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante, at 14. This lesson is obviously true but proves nothing. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an employer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s

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conduct is not sex discrimination, the statute does not apply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. For reasons already discussed, see Part I–A, supra, it is not.
It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. So long as a prohibited ground was a motivating factor, the existence of other motivating factors does not defeat liability.
The Court makes much of the argument that “[i]n Phillips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” Ante, at 14; see also ante, at 16. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distinguishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children.
Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivating factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U. S. C. §2000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussion of causation standards is so much smoke.
Lesson number three––“an employer cannot escape liability by demonstrating that it treats males and females comparably as groups,” ante, at 15, is also irrelevant. There

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is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it matter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra.
III A
Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history.
So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert, 429 U. S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the

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House of Representatives,” Meritor Savings Bank, 477 U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1085 (CA7 1984). On this theory, Representative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.36 See 110 Cong. Rec. 2577–2584.
Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they

—————— 35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the
Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20 Yale J. L. & Feminism 409, 409–410 (2009).
36 Recent scholarship has linked the adoption of the Smith Amendment to the broader campaign for women’s rights that was underway at the time. E.g., Osterman, supra; Freeman, How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity.

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were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, preStonewall days.” Ibid.
For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument

—————— 37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House
on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991).
38 See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam).
39 Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084– 1085 (CA7 1984), cert. denied, 471 U. S. 1017 (1985).

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that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42
After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138, 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v. Georgia Regional Hospital, 850 F. 3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10
—————— 40 See Ulane, 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc.,
667 F. 2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661–663 (CA9 1977).
41 Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); LaBate v. USPS, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987).
42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has referred to those grounds by name. See, e.g., 18 U. S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013).

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2007). The Court observes that “[t]he people are entitled to rely
on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante, at 31. Is it humble to maintain, not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.
IV
What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s.
The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least

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some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.
As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.
I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43
“[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44
Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the
—————— 43 Contrary to the implication in the Court’s opinion, I do not label
these potential consequences “undesirable.” Ante, at 31. I mention them only as possible implications of the Court’s reasoning.
44 Brief for Defend My Privacy et al. as Amici Curiae 7–10.

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sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.
A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.46 In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty., 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area

—————— 45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (ex-
plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”).
46 Title IX makes it unlawful to discriminate on the basis of sex in education: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a).
47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titleix-transgender.pdf.

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School Dist., 897 F. 3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019).
Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Complaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv– 00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic competitions reserved for females.49

—————— 48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but
the statute itself would of course take precedence. 49 “[S]ince 2017, two biological males [in Connecticut] have collectively
won 15 women’s state championship titles (previously held by ten different Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as Amici Curiae in No. 18–107, pp. 14–15.
At the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Division II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the

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The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.
Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith-

—————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1.
50 Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4.

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based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.
This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.
At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for

—————— 51 Brief for National Association of Evangelicals et al. as Amici Curiae
3; see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, pp. 8–18.
52 Brief for National Association of Evangelicals et al. as Amici Curiae 7.
53 McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).
54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267; St. James School v. Biel, No. 19–348.

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the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55
Healthcare. Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.56 Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.57
—————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F. 2d
458, 460 (CA9 1993); EEOC v. Fremont Christian School, 781 F. 2d 1362, 1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College, 626 F. 2d 477, 484–486 (CA5 1980); see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U. S. C. §2000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See supra, at 48.
56 See, e.g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv– 00035 (D Ariz., Mar. 2, 2020). At least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. Alaska, ___ F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020).
57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). And multiple District Courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery and treatment. Kadel v. Folwell, ___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowing

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Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.
Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as
—————— claims of discrimination under ACA, Title IX, and Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952–954 (D Minn. 2018) (allowing ACA claim).
Section 1557 of the ACA, 42 U. S. C. §18116, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns (2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;

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New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.60 After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination. See Prescott v. Rady Children’s Hospital San Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017) (hospital staff ’s refusal to use preferred pronoun violates ACA).61
The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear
—————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs).
59 See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to discriminate . . . on the basis of . . . actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educational institutions” and further proscribing “engaging in verbal . . . harassment”).
60 See University of Minn., Equity and Access: Gender Identity, Gender Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019), https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as legally required”); Meriwether v. Trustees of Shawnee State Univ., 2020 WL 704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns).
61 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX).

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that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.
Constitutional claims. Finally, despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 8); United States v. Virginia, 518 U. S. 515, 532–534 (1996). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.
Under this logic, today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohibiting transgender students from competing in school sports in accordance with their gender identity); Second Amended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (WD Wash., July 31, 2019) (military’s ban on transgender members); Kadel v. Folwell, ___ F. Supp. 3d ___, ___–___, 2020 WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (MD Tenn., Mar. 3, 2020) (change of gender on birth certificates); Brief for Appellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (CA4, Nov. 18, 2019) (transgender student forced to use gender neutral bathrooms at school); Complaint in Corbitt v. Taylor, No. 2:18–cv–00091 (MD Ala.,

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July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. of Corrections Secretary, 952 F. 3d 1257, 1262–1265 (CA11 2020) (transgender prisoner denied hormone therapy and ability to dress and groom as a female); Edmo v. Corizon, Inc., 935 F. 3d 757, 767 (CA9 2019) (transgender prisoner requested sex reassignment surgery); cf. Glenn v. Brumby, 663 F. 3d 1312, 1320 (CA11 2011) (transgender individual fired for gender non-conformity).
Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.
* * *
The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.
The Court itself recognizes this:
“The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” Ante, at 31.
It is easy to utter such words. If only the Court would live by them.
I respectfully dissent.

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Appendix A to opinion of ALITO, J.
APPENDIXES A

Webster’s New International Dictionary 2296 (2d ed. 1953):
sex (sĕks), n. [F. sexe, fr. L. sexus; prob. orig., division, and akin to L. secare to cut. See SECTION.] 1. One of the two divisions of organisms formed on the distinction of male and female; males or females collectively. 2. The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms, seems to be the function of differentiation of sex, which occurs in nearly all organisms at least at some stage in their life history. Sex is manifested in the conjugating cells by the larger size, abundant food material, and immobility of the female gamete (egg, egg cell, or ovum), and the small size and the locomotive power of the male gamete (spermatozoon or spermatozoid), and in the adult organisms often by many structural, physiological, and (in higher forms) psychological characters, aside from the necessary modification of the reproductive apparatus. Cf. , HERMAPHRODITE 1. In botany the term sex is often extended to the distinguishing peculiarities of staminate and pistillate flowers, and hence in dioecious plants to the individuals bearing them. In many animals and plants the body and germ cells have been shown to contain one or more chromosomes of a special kind (called sex chromosomes; idiochromosomes; accessory chromosomes) in addition to the ordinary paired autosomes. These special chromosomes serve to

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determine sex. In the simplest case, the male germ cells are of two types, one with and one without a single extra chromosome (X chromosome, or monosome). The egg cells in this case all possess an X chromosome, and on fertilization by the two types of sperm, male and female zygotes result, of respective constitution X, and XX. In many other animals and plants (probably including man) the male organism produces two types of gametes, one possessing an X chromosome, the other a Y chromosome, these being visibly different members of a pair of chromosomes present in the diploid state. In this case also, the female organism is XX, the eggs X, and the zygotes respectively male (XY) and female (XX). In another type of sex determination, as in certain moths and possibly in the fowl, the female produces two kinds of eggs, the male only one kind of sperm. Each type of egg contains one member of a pair of differentiated chromosomes, called respectively Z chromosomes and W chromosomes, while all the sperm cells contain a Z chromosome. In fertilization, union of a Z with a W gives rise to a female, while union of two Z chromosomes produces a male. Cf. SECONDARY SEX CHARACTER. 3. a The sphere of behavior dominated by the relations between male and female. b Psychoanalysis. By extension, the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct. 4. Phenomena of sexual instincts and their manifestations. 5. Sect;—a confused use. Syn.—SEX, GENDER. SEX refers to physiological distinctions; GENDER, to distinctions in grammar. —the sex. The female sex; women, in general. sex, adj. Based on or appealing to sex. sex, v. t. To determine the sex of, as skeletal remains.

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Webster’s Third New International Dictionary 2081 (1966):

1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin
to L secare to cut–more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated
male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral pecu-
liarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change,
that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromo-
somes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the
same individual in many plants and some invertebrates and though no such distinction can be made in many
lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in
sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE,
INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with,
leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~
should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combina-
tion of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying
and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William

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Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic
being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

9 Oxford English Dictionary 577–578 (1933):

Sex (seks), sb. Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss. sexe’s). [ad. L. sexus (u-stem), whence also F. sexe (12th c.), Sp., Pg. sexo, It. sesso. Latin had also a form secus neut. (indeclinable).]
1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (of a species, etc., esp. of the human race) viewed collectively.
1382 WYCLIF Gen. vi. 19 Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge
into the ark, that maal sex and femaal lyuen with thee. 1532 MORE Confut. Tindale II. 152, I
had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far in
loue. 1559 ALYMER Harborowe E 4 b, Neither of them debarred the heires female .. as though
it had ben .. vnnatural for that sexe to gouern. 1576 GASCOIGNE Philomene xcviii, I speake
against my sex. a 1586 SIDNEY Arcadia II. (1912) 158 The sexe of womankind of all other is
most bound to have regardfull eie to mens judgements. 1600 NASHE Summer’s Last Will F 3
b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615
CROOKE Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is
sooner perfected .. in the wombe. 1634 SIR T. HERBERT Trav. 19 Both sexe goe naked. 1667
MILTON P. L. IX, 822 To add what wants In Femal Sex. 1671—Samson 774 It was a weakness
In me, but incident to all our sex. 1679 DRYDEN Troilus & Cr. I. ii, A strange dissembling sex
we women are. 1711 ADDISON Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the
Sex than to the Species. 1730 SWIFT Let. to Mrs. Whiteway 28 Dec., You have neither the
scrawl nor the spelling of your sex. 1742 GRAY Propertius II. 73 She .. Condemns her fickle
Sexe’s fond Mistake. 1763 G. WILLIAMS in Jesse Selwyn & Contemp. (1843) I. 265 It would

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astonish you to see the mixture of sexes at this place. 1780 BENTHAM Princ. Legisl. VI. §35 The sensibility of the female sex appears .. to be greater than that of the male. 1814 SCOTT Ld. of Isles VI. iii, Her sex’s dress regain’d. 1836 THIRLWALL Greece xi. II. 51 Solon also made regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety and necessity of dividing the sexes during the publick offices of the Church. 1848 THACKERAY Van. Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865 DICKENS Mut. Fr. II. i, It was a school for both sexes. 1886 MABEL COLLINS Prettiest Woman ii, Zadwiga had not yet given any serious attention to the other sex.
b. collect. followed by plural verb. rare.
1768 GOLDSM. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 MALCOM Trav. (1840) 40/I Neither sex tattoo any part of their bodies.
c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex; the second sex; † the woman sex: the female sex, women. The † better, sterner sex: the male sex, men.
[1583 STUBBES Anat. Abus. E vij b, Ye magnificency & liberalitie of that gentle sex. 1613 PURCHAS Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that the strong men are slaine by this weaker sexe.]
1641 BROME Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of the woman sex I meet this morning. 1648 J. BEAUMONT Psyche XIV. I, The softer sex, attending Him And his still-growing woes. 1665 SIR T. HERBERT Trav. (1677) 22 Whiles the better sex seek prey abroad, the women (therein like themselves) keep home and spin. 1665 BOYLE Occas. Refl. v. ix. 176 Persons of the fairer Sex. a 1700 EVELYN Diary 12 Nov. an. 1644, The Pillar .. at which the devout sex are always rubbing their chaplets. 1701 STANHOPE St. Aug. Medit. I. xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732 [see FAIR a. I b]. 1753 HOGARTH Anal. Beauty x. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. 1820 BYRON Juan IV. cviii, Benign Ceruleans of the second sex! Who advertise new poems by your looks. 1838 Murray’s Hand-bk. N. Germ. 430 It is much frequented by the fair sex. 1894 C. D. TYLER in Geog. Jrnl. III. 479 They are beardless, and usually wear a shock of unkempt hair, which is somewhat finer in the gentler sex.
¶d. Used occas. with extended notion. The third sex: eunuchs. Also sarcastically (see quot. 1873).
1820 BYRON Juan IV. lxxxvi, From all the Pope makes yearly, ‘twould perplex To find three perfect pipes of the third sex. Ibid. V. xxvi, A black old neutral personage Of the third sex stept up. [1873 LD. HOUGHTON Monogr. 280 Sydney Smith .. often spoke with much bitterness of the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.]
e. The sex: the female sex. [F. le sexe.] Now rare.

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1589 PUTTENHAM Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[UVILL] Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of the sex. 1631 MASSINGER Emperor East I. ii, I am called The Squire of Dames, or Servant of the Sex. 1697 VANBRUGH Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. 1760-2 GOLDSM. Cit. W. xcix, The men of Asia behave with more deference to the sex than you seem to imagine. 1792 A. YOUNG Trav. France I. 220 The sex of Venice are undoubtedly of a distinguished beauty. 1823 BYRON Juan XIII. lxxix, We give the sex the pas. 1863 R. F. BURTON W. Africa I. 22 Going ‘up stairs’, as the sex says, at 5 a.m. on the day after arrival, I cast the first glance at Funchal.
f. Without the, in predicative quasi-adj. use=feminine. rare.
a 1700 DRYDEN Cymon & Iph. 368 She hugg’d th’ Offender, and forgave th’ Offence, Sex to the last!
2. Quality in respect of being male or female. a. With regard to persons or animals.
1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his kynde, nor yet hath ony distinct sex. 1577 T. KENDALL Flowers of Epigr. 71 b, If by corps supposd may be her seex, then sure a virgin she. 1616 T. SCOTT Philomythie I. (ed. 2) A 3 Euen as Hares change shape and sex, some say Once euery yeare. 1658 SIR T. BROWNE Hydriot. iii. 18 A critical view of bones makes a good distinction of sexes. a 1665 DIGBY Chym. Secrets (1682) II. 225 Persons of all Ages and Sexes. 1667 MILTON P. L. I. 424 For Spirits when they please can either Sex assume, or both. 1710-11 SWIFT Jrnl. to Stella 7 Mar., I find I was mistaken in the sex, ‘tis a boy. 1757 SMOLLETT Reprisal IV. v, As for me, my sex protects me. 1825 SCOTT Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and age. 1841 ELPHINSTONE Hist. India I. 349 When persons of different sexes walk together, the woman always follows the man. 1882 TENSION-WOODS Fish N. S. Wales 116 Oysters are of distinct sexes.
b. with regard to plants (see FEMALE a. 2, MALE a. 2).
1567 MAPLET Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, the Lawrell and such others. 1631 WIDDOWES Nat. Philos. (ed. 2) 49 There be sexes of hearbes .. namely, the Male or Female. 1720 P. BLAIR Bot. Ess. iv. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. 1790 SMELLIE Philos. Nat. Hist. I. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. 1848 LINDLEY Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of external causes.

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3. The distinction between male and female in general. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned.
Organs of sex: the reproductive organs in sexed animals or plants.
a 1631 DONNE Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more then
woman, she would get above All thought of sexe, and think to move My heart to study her,
and not to love. a 1643 CARTWRIGHT Siedge III. vi, My Soul’s As Male as yours; there’s no Sex
in the mind. 1748 MELMOTH Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex
in the very soul. 1751 HARRIS Hermes Wks. (1841) 129 Besides number, another characteris-
tic, visible in substances, is that of sex. 1878 GLADSTONE Prim. Homer 68 Athenè .. has noth-
ing of sex except the gender, nothing of the woman except the form. 1887 K. PEARSON Eth.
Freethought xv. (1888) 429 What is the true type of social (moral) action in matters of sex?
1895 CRACKANTHORPE in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The
writers and readers who have strenuously refused to allow to sex its place in creative art.
1912 H. G. WELLS Marriage ii. § 6. 72 The young need .. to be told .. all we know of three
fundamental things; the first of which is God, .. and the third Sex.
¶ 4. Used, by confusion, in senses of SECT (q. v. I, 4 b, 7, and cf. I d note).
1575-85 ABP. SANDYS Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583
MELBANCKE Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see an
Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. HOOKER Hist. Irel. 180/2 in
Holinshed, The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O de-
testable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a
1704 T BROWN Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Chris-
tians, and sure there can be no worse among the other Sex of Mankind [i.e. Jews and Turks]?
1707 ATTERBURY Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whether
of Pharisees or Saducees) should be represented, as [etc.].
5. attrib. and Comb., as sex-distinction, function, etc.; sexabusing, transforming adjs.; sex-cell, a reproductive cell, with either male or female function; a sperm-cell or an eggcell.
1642 H. MORE Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs.

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1781 COWPER Expost. 415 Sin, that in old time Brought fire from heav’n, the sex-abusing crime. 1876 HARDY Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887 Jrnl. Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are to have their way. 1889 GEDDES & THOMSON Evol. Sex 91 Very commonly the sex-cells originate in the ectoderm and ripen there. 1894 H. DRUMMOND Ascent of Man 317 The sex-distinction slowly gathers definition. 1897 J. HUTCHINSON in Arch. Surg. VIII. 230 Loss of Sex Function.
Sex (seks), v. [f. SEX sb.] trans. To determine the sex of, by anatomical examination; to label as male or female.
1884 GURNEY Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted on the drawing. 1888 A. NEWTON in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of ‘collecting a specimen’ and then of ‘sexing’ it.

Concise Oxford Dictionary of Current English 1164 (5th ed. 1964):

sĕx, n. Being male or female or hermaphrodite (what is its ~?; ~ does not matter; without distinction of age or ~),
whence ~’LESS a., ~’lėssNESS n., ~’Y2 a., immoderately concerned with ~; males or females collectively (all ranks &
both ~es; the fair, gentle, softer, weaker, ~, & joc. the ~, women; the sterner ~, men; is the fairest of her ~); (attrib.)
arising from difference, or consciousness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attractiveness arising
from difference of ~. [f. L sexus –ūs; partly thr. F]

Random House Dictionary of the English Language 1307 (1966):

sex (seks), n. 1. The fact or character of being either male or female: persons of different sex. 2. either of the two
groups of persons exhibiting this character: the stronger sex; the gentle sex. 3. the sum of the structural and func-
tional differences by which the male and female are distinguished, or the phenomena or behavior dependent on
these differences. 4. the instinct or attraction drawing one sex toward another, or its manifestation in life and

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Appendix B to opinion of ALITO, J.
conduct. 5. coitus. 6. to have sex, Informal. to engage in sexual intercourse. –v.t. 7. to ascertain the sex of, esp. of newly hatched chicks. 8. sex it up, Slang. to neck passionately: They were really sexing it up last night. 9. sex up, Informal. a. to arouse sexually: She certainly knows how to sex up the men. b. to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [ME < L sex(us), akin to secus, deriv. of secāre to cut, divide; see SECTION]

American Heritage Dictionary 1187 (1969):

sex (sĕks) n. 1. a. The property or quality by which organ-
isms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification. 2. Males or females collec-
tively. 3. The condition or character of being male or female; the physiological, functional, and psychological
differences that distinguish the male and the female. 4. The sexual urge or instinct as it manifests itself in behav-
ior. 5. Sexual intercourse. –tr.v. sexed, sexing, sexes. To determine the sex of (young chickens). [Middle Eng-
lish, from Old French sexe, from Latin sexus†.]

B
Webster’s Third New International Dictionary 2081 (2002):
1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin to L secare to cut—more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral

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peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE, INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~ should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combination of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

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Appendix B to opinion of ALITO, J.
Random House Webster’s Unabridged Dictionary 1754 (2d ed. 2001):

Sex (seks), n. 1. either the male or female division of a spe-
cies, esp. as differentiated with reference to the reproductive functions. 2. the sum of the structural and functional
differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 3. the instinct or attraction drawing
one sex toward another, or its manifestation in life and conduct. 4. coitus. 5. genitalia. 6. to have sex, to engage
in sexual intercourse. – v.t. 7. to ascertain the sex of, esp. of newly-hatched chicks. 8. sex up, Informal. a. to arouse
sexually: The only intent of that show was to sex up the audience. b. to increase the appeal of; to make more in-
teresting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [1350–1400; ME < L
Sexus, perh. akin to secāre to divide (see SECTION)]

American Heritage Dictionary 1605 (5th ed. 2011):

Sex (seks) n. 1a. Sexual activity, especially sexual inter-
course: hasn’t had sex in months. b. The sexual urge or instinct as it manifests itself in behavior: motivated by sex.
2a. Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their
reproductive organs and functions: How do you determine the sex of a lobster? b. The fact or condition of existing in
these two divisions, especially the collection of characteristics that distinguish female and male: the evolution of sex
in plants; a study that takes sex into account. See Usage Note at gender. 3. Females or males considered as a group:
dormitories that house only one sex. 4. One’s identity as ei-
ther female or male. 5. The genitals. ⸭ tr.v. sexed, sex-ing, sex-es 1. To determine the sex of (an organism). 2. Slang a. To arouse sexually. Often used with up. b. To increase the

66

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
appeal or attractiveness of. Often used with up [Middle English < Latin sexus.]

C
Statutes Prohibiting Sex Discrimination
 2 U. S. C. §658a(2) (Congressional Budget and Fiscal Operations; Federal Mandates)
 2 U. S. C. §1311(a)(1) (Congressional Accountability; Extension of Rights and Protections)
 2 U. S. C. §1503(2) (Unfunded Mandates Reform)
 3 U. S. C. §411(a)(1) (Presidential Offices; Employment Discrimination)
 5 U. S. C. §2301(b)(2) (Merit System Principles)  5 U. S. C. §2302(b)(1) (Prohibited Personnel
Practices)  5 U. S. C. §7103(a)(4)(A) (Labor-Management
Relations; Definitions)  5 U. S. C. §7116(b)(4) (Labor-Management Re-
lations; Unfair Labor Practices)  5 U. S. C. §7201(b) (Antidiscrimination Policy;
Minority Recruitment Program)

Cite as: 590 U. S. ____ (2020)

67

Appendix C to opinion of ALITO, J.
 5 U. S. C. §7204(b) (Antidiscrimination; Other Prohibitions)

 6 U. S. C. §488f(b) (Secure Handling of Ammonium Nitrate; Protection From Civil Liability)

 7 U. S. C. §2020(c)(1) (Supplemental Nutrition Assistance Program)

 8 U. S. C. §1152(a)(1)(A) (Immigration; Numerical Limitations on Individual Foreign States)

 8 U. S. C. §1187(c)(6) (Visa Waiver Program for Certain Visitors)

 8 U. S. C. §1522(a)(5) (Authorization for Programs for Domestic Resettlement of and Assistance to Refugees)

 10 U. S. C. §932(b)(4) (Uniform Code of Military Justice; Article 132 Retaliation)

 10 U. S. C. §1034(j)(3) (Protected Communications; Prohibition of Retaliatory Personnel Actions)

 12 U. S. C. §302 (Directors of Federal Reserve Banks; Number of Members; Classes)

 12 U. S. C. §1735f–5(a) (Prohibition Against Discrimination on Account of Sex in Extension of Mortgage Assistance)

68

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 12 U. S. C. §1821(d)(13)(E)(iv) (Federal Deposit Insurance Corporation; Insurance Funds)

 12 U. S. C. §1823(d)(3)(D)(iv) (Federal Deposit Insurance Corporation; Corporation Moneys)

 12 U. S. C. §2277a–10c(b)(13)(E)(iv) (Farm Credit System Insurance Corporation; Corporation as Conservator or Receiver; Certain Other Powers)

 12 U. S. C. §3015(a)(4) (National Consumer Cooperative Bank; Eligibility of Cooperatives)

 12 U. S. C. §§3106a(1)(B) and (2)(B) (Foreign Bank Participation in Domestic Markets)

 12 U. S. C. §4545(1) (Fair Housing)

 12 U. S. C. §5390(a)(9)(E)(v) (Wall Street Reform and Consumer Protection; Powers and Duties of the Corporation)

 15 U. S. C. §631(h) (Aid to Small Business)

 15 U. S. C. §633(b)(1) (Small Business Administration)

 15 U. S. C. §719 (Alaska Natural Gas Transportation; Civil Rights)

 15 U. S. C. §775 (Federal Energy Administration; Sex Discrimination; Enforcement; Other Legal Remedies)

Cite as: 590 U. S. ____ (2020)

69

Appendix C to opinion of ALITO, J.
 15 U. S. C. §1691(a)(1) (Equal Credit Opportunity Act)

 15 U. S. C. §1691d(a) (Equal Credit Opportunity Act)

 15 U. S. C. §3151(a) (Full Employment and Balanced Growth; Nondiscrimination)

 18 U. S. C. §246 (Deprivation of Relief Benefits)

 18 U. S. C. §3593(f ) (Special Hearing To Determine Whether a Sentence of Death Is Justified)

 20 U. S. C. §1011(a) (Higher Education Resources and Student Assistance; Antidiscrimination)

 20 U. S. C. §1011f(h)(5)(D) (Disclosures of Foreign Gifts)

 20 U. S. C. §1066c(d) (Historically Black College and University Capital Financing; Limitations on Federal Insurance Bonds Issued by Designated Bonding Authority)

 20 U. S. C. §1071(a)(2) (Federal Family Education Loan Program)

 20 U. S. C. §1078(c)(2)(F) (Federal Payments To Reduce Student Interest Costs)

 20 U. S. C. §1087–1(e) (Federal Family Education Loan Program; Special Allowances)

70

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 20 U. S. C. §1087–2(e) (Student Loan Marketing Association)

 20 U. S. C. §1087–4 (Discrimination in Secondary Markets Prohibited)

 20 U. S. C. §1087tt(c) (Discretion of Student Financial Aid Administrators)

 20 U. S. C. §1231e(b)(2) (Education Programs; Use of Funds Withheld)

 20 U. S. C. §1681 (Title IX of the Education Amendments of 1972)

 20 U. S. C. §1701(a)(1) (Equal Educational Opportunities; Congressional Declaration of Policy)

 20 U. S. C. §1702(a)(1) (Equal Educational Opportunities; Congressional Findings)

 20 U. S. C. §1703 (Denial of Equal Educational Opportunity Prohibited)

 20 U. S. C. §1705 (Assignment on Neighborhood Basis Not a Denial of Equal Educational Opportunity)

 20 U. S. C. §1715 (District Lines)

 20 U. S. C. §1720 (Equal Educational Opportunities; Definitions)

Cite as: 590 U. S. ____ (2020)

71

Appendix C to opinion of ALITO, J.
 20 U. S. C. §1756 (Remedies With Respect to School District Lines)

 20 U. S. C. §2396 (Career and Technical Education; Federal Laws Guaranteeing Civil Rights)

 20 U. S. C. §3401(2) (Department of Education; Congressional Findings)

 20 U. S. C. §7231d(b)(2)(C) (Magnet Schools Assistance; Applications and Requirements)

 20 U. S. C. §7914 (Strengthening and Improvement of Elementary and Secondary Schools; Civil Rights)

 22 U. S. C. §262p–4n (Foreign Relations and Intercourse; Equal Employment Opportunities)

 22 U. S. C. §2304(a)(1) (Human Rights and Security Assistance)

 22 U. S. C. §2314(g) (Furnishing of Defense Articles or Related Training or Other Defense Service on Grant Basis)

 22 U. S. C. §2426 (Discrimination Against United States Personnel)

 22 U. S. C. §2504(a) (Peace Corps Volunteers)

 22 U. S. C. §2661a (Foreign Contracts or Arrangements; Discrimination)

72

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 22 U. S. C. §2755 (Discrimination Prohibited if Based on Race, Religion, National Origin, or Sex)

 22 U. S. C. §3901(b)(2) (Foreign Service; Congressional Findings and Objectives)

 22 U. S. C. §3905(b)(1) (Foreign Service; Personnel Actions)

 22 U. S. C. §4102(11)(A) (Foreign Service; Definitions)

 22 U. S. C. §4115(b)(4) (Foreign Service; Unfair Labor Practices)

 22 U. S. C. §6401(a)(3) (International Religious Freedom; Findings; Policy)

 22 U. S. C. §8303(c)(2) (Office of Volunteers for Prosperity)

 23 U. S. C. §140(a) (Federal-Aid Highways; Nondiscrimination)

 23 U. S. C. §324 (Highways; Prohibition of Discrimination on the Basis of Sex)

 25 U. S. C. §4223(d)(2) (Housing Assistance for Native Hawaiians)

 26 U. S. C. §7471(a)(6)(A) (Tax Court; Employees)

Cite as: 590 U. S. ____ (2020)

73

Appendix C to opinion of ALITO, J.
 28 U. S. C. §994(d) (Duties of the United States Sentencing Commission)

 28 U. S. C. §1862 (Trial by Jury; Discrimination Prohibited)

 28 U. S. C. §1867(e) (Trial by Jury; Challenging Compliance With Selection Procedures)

 29 U. S. C. §206(d)(1) (Equal Pay Act of 1963)

 29 U. S. C. §§2601(a)(6) and (b)(4) (Family and Medical Leave; Findings and Purposes)

 29 U. S. C. §2651(a) (Family and Medical Leave; Effect on Other Laws)

 29 U. S. C. §3248 (Workforce Development Opportunities; Nondiscrimination)

 30 U. S. C. §1222(c) (Research Funds to Institutes)

 31 U. S. C. §732(f ) (Government Accountability Office; Personnel Management System)

 31 U. S. C. §6711 (Federal Payments; Prohibited Discrimination)

 31 U. S. C. §6720(a)(8) (Federal Payments; Definitions, Application, and Administration)

74

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 34 U. S. C. §10228(c) (Prohibition of Federal Control Over State and Local Criminal Justice Agencies; Prohibition of Discrimination)

 34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans)

 34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program)

 34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women)

 34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)

 34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance)

 36 U. S. C. §20204(b) (Air Force Sergeants Association; Membership)

 36 U. S. C. §20205(c) (Air Force Sergeants Association; Governing Body)

 36 U. S. C. §21003(a)(4) (American GI Forum of the United States; Purposes)

 36 U. S. C. §21004(b) (American GI Forum of the United States; Membership)

 36 U. S. C. §21005(c) (American GI Forum of the United States; Governing Body)

Cite as: 590 U. S. ____ (2020)

75

Appendix C to opinion of ALITO, J.
 36 U. S. C. §21704A (The American Legion)

 36 U. S. C. §22703(c) (Amvets; Membership)

 36 U. S. C. §22704(d) (Amvets; Governing Body)

 36 U. S. C. §60104(b) (82nd Airborne Division Association, Incorporated; Membership)

 36 U. S. C. §60105(c) (82nd Airborne Division Association, Incorporated; Governing Body)

 36 U. S. C. §70104(b) (Fleet Reserve Association; Membership)

 36 U. S. C. §70105(c) (Fleet Reserve Association; Governing Body)

 36 U. S. C. §140704(b) (Military Order of the World Wars; Membership)

 36 U. S. C. §140705(c) (Military Order of the World Wars; Governing Body)

 36 U. S. C. §154704(b) (Non Commissioned Officers Association of the United States of America, Incorporated; Membership)

 36 U. S. C. §154705(c) (Non Commissioned Officers Association of the United States of America, Incorporated; Governing Body)

 36 U. S. C. §190304(b) (Retired Enlisted Association, Incorporated; Membership)

76

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 36 U. S. C. §190305(c) (Retired Enlisted Association, Incorporated; Governing Body)

 36 U. S. C. §220522(a)(8) and (9) (United States Olympic Committee; Eligibility Requirements)

 36 U. S. C. §230504(b) (Vietnam Veterans of America, Inc.; Membership)

 36 U. S. C. §230505(c) (Vietnam Veterans of America, Inc.; Governing Body)

 40 U. S. C. §122(a) (Federal Property and Administrative Services; Prohibition on Sex Discrimination)

 40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)

 42 U. S. C. §213(f ) (Military Benefits)

 42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness)

 42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants)

 42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)

Cite as: 590 U. S. ____ (2020)

77

Appendix C to opinion of ALITO, J.
 42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)

 42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions)

 42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination)

 42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families)

 42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions)

 42 U. S. C. §1975a(a) (Duties of Civil Rights Commission)

 42 U. S. C. §2000c(b) (Civil Rights; Public Education; Definitions)

 42 U. S. C. §2000c–6(a)(2) (Civil Rights; Public Education; Civil Actions by the Attorney General)

 42 U. S. C. §2000e–2 (Equal Employment Opportunities; Unlawful Employment Practices)

78

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §2000e–3(b) (Equal Employment Opportunities; Other Unlawful Employment Practices)

 42 U. S. C. §2000e–16(a) (Employment by Federal Government)

 42 U. S. C. §2000e–16a(b) (Government Employee Rights Act of 1991)

 42 U. S. C. §2000e–16b(a)(1) (Discriminatory Practices Prohibited)

 42 U. S. C. §2000h–2 (Intervention by Attorney General; Denial of Equal Protection on Account of Race, Color, Religion, Sex or National Origin)

 42 U. S. C. §3123 (Discrimination on Basis of Sex Prohibited in Federally Assisted Programs)

 42 U. S. C. §3604 (Fair Housing Act; Discrimination in the Sale or Rental of Housing and Other Prohibited Practices)

 42 U. S. C. §3605 (Fair Housing Act; Discrimination in Residential Real Estate-Related Transactions)

 42 U. S. C. §3606 (Fair Housing Act; Discrimination in the Provision of Brokerage Services)

 42 U. S. C. §3631 (Fair Housing Act; Violations; Penalties)

Cite as: 590 U. S. ____ (2020)

79

Appendix C to opinion of ALITO, J.
 42 U. S. C. §4701 (Intergovernmental Personnel Program; Congressional Findings and Declaration of Policy)

 42 U. S. C. §5057(a)(1) (Domestic Volunteer Services; Nondiscrimination Provisions)

 42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)

 42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities)

 42 U. S. C. §5891 (Development of Energy Sources; Sex Discrimination Prohibited)

 42 U. S. C. §6709 (Public Works Employment; Sex Discrimination; Prohibition; Enforcement)

 42 U. S. C. §6727(a)(1) (Public Works Employment; Nondiscrimination)

 42 U. S. C. §6870(a) (Weatherization Assistance for Low-Income Persons)

 42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions)

 42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)

 42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)

80

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds)

 42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States)

 42 U. S. C. §11504(b) (Enterprise Zone Development; Waiver of Modification of Housing and Community Development Rules in Enterprise Zones)

 42 U. S. C. §12635(a)(1) (National and Community Service State Grant Program; Nondiscrimination)

 42 U. S. C. §12832 (Investment in Affordable Housing; Nondiscrimination)

 43 U. S. C. §1747(10) (Loans to States and Political Subdivisions; Discrimination Prohibited)

 43 U. S. C. §1863 (Outer Continental Shelf Resource Management; Unlawful Employment Practices; Regulations)

 47 U. S. C. §151 (Federal Communications Commission)

 47 U. S. C. §398(b)(1) (Public Broadcasting; Equal Opportunity Employment)

Cite as: 590 U. S. ____ (2020)

81

Appendix C to opinion of ALITO, J.
 47 U. S. C. §§554(b) and (c) (Cable Communications; Equal Employment Opportunity)

 47 U. S. C. §555a(c) (Cable Communications; Limitation of Franchising Authority Liability)

 48 U. S. C. §1542(a) (Virgin Islands; Voting Franchise; Discrimination Prohibited)

 48 U. S. C. §1708 (Discrimination Prohibited in Rights of Access to, and Benefits From, Conveyed Lands)

 49 U. S. C. §306(b) (Duties of the Secretary of Transportation; Prohibited Discrimination)

 49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination)

 49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination)

 49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination)

 50 U. S. C. §3809(b)(3) (Selective Service System)

 50 U. S. C. §4842(a)(1)(B) (Anti-Boycott Act of 2018)

82

APPLICA T ION FOR ENL ISTMENT - ARMED FORCES OF THE UNITED STATES

I Fo...,, App,ou1d O.iUD1/2-R 0331.

DAlA REOU1RED BV THE PR'JVACV.ACT OF 1974

AUT-flORITV:

Title 10, United! States Code, Sections 604, 505, 508, lllld 510', aud Executive Otder 9397 .

PRINCl?A IL PURPOSE: To detemiin .e your eligibility for <!nlistmcnt.

ROUT,IIIIE uses:
DISCLOSURE:

ll you are enli5ted, this form becomes the principal SOlllCe document for, and a part of, yow w..ilital'y persollJlel recotd.s which

:'.INused to make decisions related to yoUI ttainin ,g, ptomotion, reassignment, .and other ~rsotlllel mao3iemec.t ,actio0s.

Voluntary; failure eoanswer all questions on tbis form except 12, 26, 32,. and 35 may result in denial of yoW' enlislmea ,t

I

'WARNING
Wormation. provjded by you on ebis form is FOR OFFICIAL USE 01','L Y and will be maintained and wietl in strict compliance 'Witb Federal law and r@gualtion. The information provide d by you becomes the p:roperty of the United States Govemmcot ~nd it may be consulted throughout your m ilit :lrJ' service career, particulady whenever cither favorab le or adverse administra•
tive or di,cipl:inary actions related to you are involved.

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.
D

YOU CAN BE PUNISHED B.YFINE, IM1'RISONMENTOR BOTH lF YOU ARE fOUND CUJ!LTY OF MAKING A KNOWING AND WILLFUL FALSE STATEMENT ON THIS APPLICATION.

INSTRUCTION S (Read carefully BEFORE filling out this form)

1. Type or print LEGIBLY al.Ianswers ; if the answer is ''None" or "Not Applicable.'' so state. 2. Questions 12, 26, and 32 are optional and may be left blank. Question 35 may be auswered orall1.
3. lf additio nal snace is needed for anyanswer, continue it in ftem 37, "REMARKS."

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

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84

LAST NAME

S~SN·;·

Ill. VERIF ICATION OF PERSONAL DATA
23. If Preferred Enlistment Name (name given in block 11 is not the same as on your birth certificate ond has oat been changed by legal pr ocedure prescr ibed by state law , complete the following :

a. NAME AS SHOWN ON BIRTH CERTIFICATE

I hereby state tha t I have not changed my name through any court proc edure; and that I prefer to use the nome by wh ich I am k nown
in the community as a matter of convenience and wjth no cr;minal or frauduren1 intent. I further stat e tha t I am th e same person as
the one whose name is st,own in block 1 .

b. WITNESS (Name, grade, 3nd signatureI

c. SIGNATURE OF APPLICANT

24. EDUCATION

YEAR&M ONT H

FROM

TO

NAME AND LOCA TION OF SCHOOL

GRADUATE YES NO

DEGREE RECEI VED

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

25 . CITIZENSHIP VERIFICATION {To be completed In presence of your recruiter! .

a. PLACE OF Bl RTH (City , State and (i f not in USA ! Country)

b. BIRTH CERTIFICATE ISSUED BY (County and State)

c:. BIRTH CERTIFICATE FILE NUMBER

Id. IF NATURA LIZ ED, cERTI FICATE NO.

f . IF DERIVED , PARENTS' CE RT IF ICATE NO (SJ. OAT E, PLACE ANO COURT

f . IF ALIEN.ALIEN REGISTRATION NUMBER

g. NATIVECOUNTRY

,h. DATEANDPORTOFENTRY

- .... - .-..---·"·-

26. Ml LITARY SERVICE
a. Ar e you now or have ever been in 1he Regular. Reserve or National Guard of th e United State s? D No D Yes. If "yes", comple te the follow ing:

b . PAY GRADE AND c. SERVICE AND

SERVICE NUMBER

COMPONENT

d . DA TE OF ENTRY

e. DA TE OF DISCH

f . TYPE DISCH/ REL

g. TIME LOST (NO . OF DA VS)

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

n. If you nra now a member of a US Re•erve or National Guard orgoni ,atlo n, fill in or93nl2atlon name and unit address:

27a. PREVIOUSMILITARYSERVICE

I Years I Months I

DO NOT WRITE

Total Active Military Service I

I

I

IN THIS BLOCK

I Tota l Inactive Military Service

I

I

IV. OTHER BACKGROUND DATA

28a. RELATIVES

b . DA TE AND PLACE OF Bl RTH

.FATl:i.ER

Days b. PESO c. PRESENT ADDRESS

MOTHER (Maidf!fl•na"12!

SPOUSE (Maiden-namel

CHI LO REN fShow Relationship)

_,,_.,.,._,,,.~

c. AOSD
d. CITIZENS HIP

~~~";!5 00

196612 REPLACES DD FOAM 1966 , 1 JUN 75, WHICH WI LL BE USED

1

PAGE 2

85

86

LAST NAME :_______________

_ _____

_ ___,N :__________

_

29. COMMERCIAL LI FE INSURANCE POLICIES YOU OINN ON YOUA t.ll=E - Omional entry: u5ed to assist your survivors in filing claims should you die WYhileon active duty.

&1. NAME Of=COMPANY ISSUING POLICY

b. POL.ICY NlJMBER

30. FIELATIV 1ES AND ALIEN FR I ENDS LIVING IN FOREIGN COUNTRIES in e fcweign co untry.

a. NAME ANO RELATIONSHIP

b. AGE c. OCCUPATI ION

Ust at1yone w,ith whom you had or have a c!ose re!ati onsi'lip , who lil,es

d. ADDRESS

~. CIT FZENSHIP

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

31, RESID:ENCE:S-List all from 10th birthday.

YEAR & MONTH

FIIOM

TO

NUMBER AND STREET
..

CITY

I

32. EMPLOYMENT-Show every employment you have· t-.adand all periods of unemplovrnen t.

a.YEAR & MONT I-I b. Company n~me a_!ll~a~ (~~e~ f .!.rt..fil9te.J[)VipCode)

c. JOB T"ITLE

FROM

TO

STATE ZIP CODE
I
I
d. SUPERVISOR NAME

I

e. HAVE YOU EVER WORKED FOA A FOREIGN GOVERNMENT? □ NO □ YES (If "yu" yo u wo~ked fn,, 10,·ariori and noti,r .~ of yo1 u d11tif I}

;:,ivt dat<-s of cmplo ,i· mrnr . .(iu ,·r,·11111,·111

33. ME M BE RSHIP I N YOUT H PRO GR AMS-O ptio nal en1ry; you ma y b• eligible fOf o highff paygrode, based on membership and par r,eipa tion ,n

0 No me mbershi p

t he y o ut h pr ogram s listed below .

ORGANIZA TIO N

MEMBERSHIP HEL D

FROM

TO

CO NDU CTE D BY (SPONSO RI

L OCAT ION (SCHOOL A ND A D D RESS !

Y EARS COMPLE T EO O R LE VE L REA CHED

ROT C

IYEARSI

JRO TC

!YEA RS)

CAP

A I R FORC E

(L EVEL)

SEA CA DET OT HER ISpecifvl

NAV Y

IL EVE LI

34 . FORE IGN TRAV EL- Other t hon os a direct result of mi litary servtC.a.

YEAR &MO NT H

~RO M

,a

COU N TRY VISI TED

PURPOSE O F T RA VEL

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

3 5. DECLAR ATIO NS-E xpla in "Y es" enswers in it em 4 1.

a. HAVE YOIJ EVER BEo N REJECTED FOR ENLISTMENT. REENUSTMENT .

d. A.RE YOU N OW ORA.1.NtNG. OR 00 YOU HAVE AN APPLI CAT ION PEND ING

QA I NO ucr 10 N INTO AN Y BRANCH OF THE ARMEOFO RCES0 ~ THE UNITED STAT ES?

0 NO

DY ES

OR APPROVAL FOR. RETIRED PAY, O•SABILIT Y ALLOWANCE.OR SEVERANCE PA Y OR A PENSION F"ROMTHE COVERN MEM T OF THE

b. ARE YOU A CONSC I ENT IOUS OBJE CTOR ?

UNITEOSTATES1

0 NO 0 YES O NO 0 YES

< A RE YOU N OW OR HAVE YOU EV ER BEEN A DESERTER FROM ANY BRANCH e. ARE YO U T HE ONLY L IVI NG CHI L D OF YOU R PARENTS!

OF THs ARMs O FORCESOF THS ur, Ir e oS TATESl

0 NO 0 VCS 0 NO 0 YES

..36. UNDERSTANDINGS. I understand that if I am rejected for enlis1ment bscause of a disqualificati on I haiJeconcealed. I may not be p, ovided return tu nspon ation fron, the placeof exami~t tOn to my home.
b . (For male applicants o nly }. I un d ersrand that if I have no t reached my 261h b ir1hday 1hata n o,igi nal enlistment obl igates me to serve in the Armed F0<c es fo r a peri o d of si>c (8:Jyears lact il/e-and reserve) unlesssooner d ischarged.

IIN I TIALS I (INI TI ALS )

DD FOAM 1 AUO 'J~

1966/ 3

FIE P1-AC'E S OD F O AM 1966 , 1 J UN 7 5, WHICH ·WILL ee: us eo

PA CE 3

87

88

BOSTOCK v. CLAYTON COUNTY

AppendAixLIDTOt,oJo.,pdinisisoennotifnAgLITO, J.

LAST NAME :____________

__ ______

SSN :_ _____

__ _____________

_ _

:··:p ,:•·p. :IARACTER AND SOCIA L ADJUS TM ENT: Read and consider the fo llowing instructions caref ully BEFORE answering questions a through I.

1. If your answer to every question is truthfu lly · 'NO ' ", please indicate in the appro pr iate space.

2 . If your answe r to any quest ions in th is item is ..YES.., or you have reservatio ns abou t answering questions of th is nature. you are not

requi red to answ er, or explain any cl · th ese questions i n wr iti ng . Instead, you may request a personal interview in which you may provide

the requ i red informatio n for each quest ion orally .

;;

·

.

3 . If you choose the personal interview, the inf ormati on you give moy b3 inves tigated; however, any written record of the in terview itself wi ll not be retained mo re th an six mon ths after entry upon active duty , and it will not become a pan of your permanent m il itary personnel service record .

4 . If you enlist , th is information may be requested fro m you again at some future date and may become a part of your secur ity investigative file at that time . This coul d occur as a resu lt of your being conside red fer duties invo lving access to classified info rmation or other types of duty requ iring a personnel security i nvestigation .

5. A "YES" ' answe r wi ll net necessarily disqual ify you for e.nlistmcnt . It wi ll depend on the ci rcums tances surrounding the situat ion involved .

INITIAL HERE IF YOU PREFER A PERSONAL INTERVIEW:

I □ □ APPLICANT HAS BEEN INTERVIEWED AND IS

DATE OF INTERVIEW

NAME, ORGANIZATION & TITLE

ELIGIBLE FOR ENLISTMENT,

IN ELIGIBLE FOR ENLISTMENT

., SIGNATUREOF INTERVIEWER

EXPLAIN "YES ' · ANSWERS IN ITEM 41 :
a. HAVE YOU EVER TAKEN ANY NARCOTIC SUBSTANCE. SEDATIVE, ST IMULANT, OR TRANQUI LIZER DRUGS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN ?
b . HAVE YOU EVER INTENT IONALLY SNIFFED GLUE, PAINT, HA IRSPRAY. OR OTHER CHEMICAL FUMES?
c. HAVE YOU EVER BEEN INVOLVED IN THE USE, PURCHASE, POSSESSION OR SALE OF MARI J UANA, LSD, OR ANY HARMFUL OR HA BIT-FORM ING DRUGS AND / OR CHEMICALS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN?

d . HAS YOUR USE OF ALCOHOLI C BEVERAGES (SUCH AS LIQUOR, BEER, WIN£') EVER RESULTED IN THE LOSS OF A JOB, ARREST BY POLICE, or TREATMENT FOR ALCOHOLISM?

e. HAVE YOU EVER BEEN A PATIENT (WHETHE,'? OR NOT FORMALLY COMMIITED) IN ANY INST ITUTION PRIMAR ILY DEVOTED TO THE TREATMENT OF MENTAL , NERVOUS, EMOT IONA L, PSYCHOLOGICAL. OR PERSONALITY DISORDERS?

t HAVE YOU EVER ENGAGED IN HOM OSEXUAL ACTIVITY (SEXUAL RElATIONS W ITH ANOTHER PERSON OF THE

SAME SEX)?

-

NO YES
. --

--

·-

38. MAR ITAL STATUS AND DEPENDENCY

a. ARE YOU NOW, OR HAVE YOU EVER BEEN MARR IED?

b . IF YOU HAVE BEEN MARRIED. ARE YOU NOW LIVING WITH YOUR SPOUSE?

c. HAVE YOU EVER BEEN DIVORCED? (If yes, enter date, place and court wh ich granted divorce or legal separation)

d . IS ANY COUR T ORDER OR J UDGEMENT DIRECTING SUPPORT FOR CHILDREN OF ALIMON Y IN EFFECD (Enter date, place, and coun which granted alimony decree, or suppon as the resul t of a paternity suit)

NO YES

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

e. IS A NYON E OTHER THAN YOUR SPOUSE ANO/O R CHllOREN SOLELY OR PART IALLY DEPENDENT UPON YOU? (list name & address)

39. Do you now have. or w ithi n the past ten years, have you had know ing members hip wit h the specitic intent of furthe ring the aims of. or adherence to and active participation in any foreign or domestic organizations, association, movement, group, or combinat ion of persons (hereinafter referred to as organiza ti ons) w hich unlawfully advocates or pract ices the comm ission of acts of force or vio lence to preven.t others from exercising their rig hts under the Constitu tion or laws of the United States or of any Stale, or whic h seeks to overthrow the Governmen t of tho Un ited States or any Slate or subd ivision thereof by unlawful mea ns?
If you answered "yes", give the names of the organizations and inclusive dates (month and year) of your membership; descri be the nature of your activit ies as a member of the organ ization(s) in the " Remarks" section, Item 41 .

INO i YES

40 . INVOLVEMENT WITH POLICE OR JUDIC IAL AUTHORI TIES

YOUR ANSWERS TO THE FOU OWING QUESTIONS Will BE VERIFIED WITH THE FEDERAL BUREAU OF INVESTIGATION (fBI), AND OTHER A GENCIES TO D5TERMINI: A NY PREVIOUS RECORDS OF ARRESTOR CONVICTIONS OR JUVENILE COURT ADJUDICAT IONS. IF YOU CON· CEAL SUCH R~CORDS AT THIS TIME, YOU MAY , UPON ENLISTMENT, BE SUBJECT TO DISCIPLINARY ACTION UND ER THE UNIFORM CODE OF MI Lli ARY JUSTICEA ND/ OR OISCHARG!: FROM THE M ILITARY SERVICE WITH OTHER THAN AN HONORABLE DISCHARG E.
NO YES

a. Have you ever been arrested , charged . cited , or held by Federal. Slate, or other law enforcement or juven ile authori ties regard less of whether the citation or charg e was dropped or d ismissed or you we re fou nd not g uilty?
b. As a result of being arr ested , Charged. cited, or held by law enforcement or juvenile author,ues, nave you ever been convicted , lined by or forfe ited bond to a Federal, State, or oth~r judicia l author ity or adjudicated a yout hful offender or j uveni le dclinouent lreoardless of whe ther the reco rd in vour case has been "sea led" or other w ise stricken from the court record)?

c . Have you ever been detained, held in, or served time in. any jail or prison, or reform or industrial school or any j uveni le faci lity or institut ion under the ju risdictio n of any City , County . State, Feder.al or foreign country?

d . Have you ever been awarded, or are yo u now under suspende d sentence. parole , or pro bation o r awai1ing any action on

charges agains1 you?

•

• ·DD ·t ~~~M 751966/ 4 · ~!~;,Atc;il.o;}/~~~c~9!~e:

~C~i-:HICH 10J8u5

wtl.l. ,BE USE~ A N.D o .D .f.ORf?I 373 , 1 J,1AR 74 : o o FORM

PA GE 4

89

90

LAST NAME·

SSN.·..

40. Continued

NO

e. HAVE YOU BEEN RELEASED FROM PAROLE, PROBATION , JUVE NI LE SUPERVISION, OR GI VEN A SUSPENDED SENTENCE

OR RELIEVED OF CHARGES PENDING ON CONDITION THAT YOU APPLY FOR OR ENLIST ' IN THE US ARMED FORCES?

f . ARE YOU NOW INVOLVED IN OR A PARTY TO OR CONNECTED WITH ANY COURT ACTION OR CIV IL SUIT? (EXPLAIN "YES" ANSWER IN ITEM 411

g. EXPLAIN BELOW " YES" ANSWERS IN "a" THROUGH "e", BE CAREFUL TO INCLUDE All INCIDENTS WITH LAW ENFORCEMENT AUTHORITIES THAT YOU DISCUSSED WITH YOUR RECRUITER .

OFFENSE

DATE/PLACE

AGE

DISPOSITION

COURT

YES

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

41. REMARKS

I I
I am interested in the following opti ,ons or prog, .ams:

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

V. CERTIF ICATION

42, BY APPLICANT : I UINOERSTAN IO THAT THE ARMED FORCES REPReSENTATIVE WHO WILL ACCEPT MY ENLISTMENT DOES SO IIN

RELIA NCE ON THE INifOAMATION PROVIDED BY ME IN THIIS DOCUMENT; .THATIF ANY OF Tf-tE INFORMATION IS KNOWING L Y FALSE

OR 'INCOAREC T, I MAY BE PROSECuno , UNDER FEDERAL CIVILIAN OR Ml LITA AV LAW OR SUBJECT T 01 ADMIN ISTRATIVE SIEPARATIION

PROCEEDINGS ANO, IN EITHER INSTANCE, I MAY 'RECEIVE A LESS THAN HONORABLE DISCHARGE WHICH COULD AFFECT MY FUTURE

EMPLOYMENT OPPORTUNITIES. I CERTIFY THAT THE 1,NFOAMATION GIVEN BY ME IIN THIS DOCUMENT IS TRUE, COMPL ET1E, AND

I CORRECT TO THE 6ESi OF MY KNOWLEDG E ANO BEL.IEF,

a. ,r.:1.0.,:i;-

b. ~~vDStOQlm,tt,I,.-

Ic. SIGNATURE OF APPLICANT

,o 43. DATA VE RI FlrCATI ON : To be ,comple ·ted by the recrui ter who enters a description of the actua'I documerrts re\licvved by him/her

/AGE I NAME

CITIZENS HI p

verify:

EOUCA.TION

IPA.I.ORJIIULITAAYSERVICE

OTHER (Specifyl

75 00 \ ~~~ 1966/5 REIP~CSS OD FORM 1966 ., 1 JUN 75 , WHICH WILL e re, USl::Cl1

PAG ,E 5

91

92

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

LAST NAME: __ _

_ ___

______

____

__ _ SSN :_ _,.,,_____________________

_

I 44, RECRUITER: I certify that I have w itnessed applicant's sigmnure above and further certify that I have verified the data In Sections I, 111,

and IV of this documen t, and the documents l1sited above as proscribed by my directives . I understand my liability to tr ia! by co,uru-martial

under the Uniform Code of MHitary Justice should I effect or cause to be effected the enl istment of anyone known by me to be ine ligible

for enlistment. a.. DATE

rb. NAME, GRADE, SSN, .AND RECRUITER ID NO . ffype or Print)

,c . SIGNATURE OF RECRUITER

VI. PARENTAL/GUARDIAN CONSENT FOIRE:NLISTMENT

1 45. I/we cert ify that the applicant named here in hz~ no other legal guardian than rne/us and I/we consent (O his/her

enlistment in the

.

.

.

subject to all the requliements and lawfu l

commands of th e officers who ,may, from t ime to ti'me., be placed o,ver him/her; and I/we certif 'y that no premise ·of any kind has

be1in made to m,;/us concerning assignment to duty, or promot ion dur ing his/he r enli:stment ,as an indu cement to me/us: to

iig n th is consent . I/we hereby authorized the Arme<ilForces representat ives concerned to administer med ical examinations ,

I

mental ond/or aptitude test ing, and conduct rec,ords checks to determine applicant's enlistment eligibil ity. I/we relinquish all

cla im to his-/lilerservice and to any wage or compensat ion i ,or such service .

46. For enlistment in a Reserve Componenr: I/we understand that as a member of a, Reserve Component, he (she muSt serve m inimum periods of active duty unless ex-cuse<b:Iy compe te nt authority . In ·the evant he/she fails to fulfiU the obligations of hls/ her Reserve commitment, he/she may be reca lled to active duty as prescribed by law.
I/we further understand that wh ile the -applicant is in the •Ready Reser11,e, he/she may be ordered to extended act ive duty in time of war or national emergency declared by the Cong ress or the President or when otherwi5e :authoriied by law.

47. I/we cert ify thot the applicant's birth date is: NAM E1 AND SIGNATURE OF WITNESSl ·NG OFFICIAL

SIGNATURE OF PARENT 0A LEGAL GUARDIAN

NAME AND SIGNATURE OF WITNESSING OFFICIAL

S IGNATURE OF PAREN T OR LE.GAL GUARD IAN

,I

VER IF ICATION OF S INGLE SIGNATURE CONSENT

VII. ENLISTMENITOPTIONS - Completed by guidance counsellor. career counsellor, recruiter, AFEES Liaison NCO,

etc., as specified by sponsoring service. ENL. COMP. IGRADE/RA TE.I0A TE OF RAI\JK 'TERM ENL. 1T-EMOS/AFS IPMOSl'AFS

j 'WAIVER INFO,0PT ANAL PROG ENL FOR

- .. .. . -· .. --·- ---

SPECIF IC OPTIONS ENLISTED FOR

I c,ertify that I ha"e re'liewed all information contained in t.hft document and, to the beit of my judgment and be'lief', applicant fulfills all leg.al and poltcy req u irements for enlistment . I acc,ept. his/her enl istment on behalf of the I furrher certify that service regulations governing such enlislment ha'le been strictly complied with and 111nwyaivers required to eHec t applicant's enlistment have been secured and .are attached to this doc:umem.

DATE

NAME, GR.ADE,ANO SSN, ORGANIZATION OR RECRUITERID I SIGN ATlJAE
rrvpe or pr,r,f)

~ECEATIFICATION

BY APPLICANT, AND CORRcCTION OF ·DATA AT TIME OF ENLISTMENT

11 HAVE REVIEWED ALL INFORMATION CONTAI N ED IN TH IS DOCUMENT; THAT 'INFORMATION IS STILL CORRECT AND TRUE TO
THE BEST OF MY KNOWLEDGE ANO BELIEF. IF CHANGES WERE REQU I RED. THE OR IGINAL ENT IAY l!-IASBEEN MARKED . "SEE VIII " AND THE CORRECTED I NFORMATION IS PROVIDED BELOW. KEYE □ TO THE APPROPR IATE QUESTION.

QUESTION

CHANGE REOU IFIED

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

!

I

DATE

NAME , GRADE. SSN ANO SIGNAi llRE OF WIITNESS

SIGNATURE OF. APPLICANT

171"ypoer Prind
I

- DD .............1966/ ,6

-

-

_ _,__ ....

·- · -

-.

1 AUG , 75

93

94

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

Cite as: 590 U. S. ____ (2020)

95

Appendix D to opinion of ALITO, J.

I

'

t

I

~
§j

-0

►
i:-C• I ~·

I
I

fl:

0

!..

' i
i
i
I

•1ft
d :I C

96

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

DD Form 1966 RECORDOF MILITARY PROCESSING ARMEDFORCESOF THE UNITED STATES

&Y,JHQ!W:

Prlv•t:Ar.ctSt•t•m•nt
'Title 10, Unit4'd St atts coo. SKIIOM so, , 505, SOI, 510. and :s2,o. •.nd Titl• 50 use Apr:,and11451 ,no fOll-•t19 ~ l• Ofl.

mNCJrA'!t\11?9$:1 IIOUTIIUNSE:S

·····- -- - - TOdftflmi ... your el igibility for mil,uiry Mf\l lH . -

1W1 fOfffl IN<O'Mi the princip,,I t0urc. documen t fo, , ~ INI" of , vovr m lUta,y

Pt~

,·tco,Clf w hi ch art uMCIto mak• dac.,lion, rel1Wd to -,o.,r v,in,110 , PtOfflObon.

nt.1gnmenu•,nd ot her panonrvl m•~ment ffl •on••- . _ ·-

QS~IU! : - - ·· · • Voh,1nta"1; ._., . l11lu•• ,~ --

ail ~uinltoM on th 11 farm, e■ciept • optoon.1 •

,cano) -, - • ·· ~ter11.1""~ rwult ln d.n ial of ~r • ~l nm~ . :_ 7 __ _ .•

· ·- -

-~ fSrlrfllwe Sffltl~ - DitdUll,IT'f oi ,.q\Jffl<M in'fon,11'1ionIf ffllndl\o,y ltMCtPt • OO\ICINll 0 itffill, dillCJQIUl'W

Rlt{lllll.-l'tb)J

of wN<h ,, 'IOlt,1nwy , . -

•• •- - - ·-. -

~

WARNING
_ lnfo'!"ation provided by you on th is farm is FOR OFFICIAi. US£ O"IL't 411\dwill b• mainQinm and ust'd in strict ,campliane4 with Fedtrel l•W$and ~ulations. The into,matlon provid~ by you b•comat th• t,roperty of tht United States Governm~nt , •nd it m•y bt cont.Yli.d throughout your milltlry servlct ar~er. part icularly wl:'ttne-nr either fi1110ralbe or a~~rw ~~in isuatl.,. or dlkiplinary actions relat~ to yo'-!are involved.

·-· _· - YOU CAN 8£ PUNISM8(VOFINE.IMPRISONMENTOR BOTH IF YOUARE FOUN·p

tiUJlT'{OF MAKING A KNOWING AND WILLFUL FALSE STATEMENTON TH!SOOCUMENT.

-- ---------- ·--- ···- ·---- -

·- - · ··

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

INSTRUC110N1
this~-> (ltffd(A,.fully ,t,ORt fillittgOllf

.1.R•.•d P:!jvacyAct S~t•'!'~nt ~bov~.befo~t c:ompletln~ form..

2. Type or print LEGIBLYall answt~ ; If the answer is •Nane• or ·Not Applicable,• $0 statt .

•o'P'TIONAL • questions may be left blonk.

•

-

··· 3. list all responses requlrit'lg d•tes (schools, •mployment/residences) in c:hronological order '

bt11inning with present or the most recent 1nd work backwards. Show all (employers/

reJ,dtnCfl) ior tht last five yon or since 13th birthdo1y. Give inclusil1t d•tt1 for Heh ptriod of

residence/ employmentlschool. If ~d•t ional SP•" is nttdtd for any answer, continue it in Item

39, •R,marks. • ·

•

4. Unless otherwise specified , wr ltt all dat~ I\ 6 digiti (with no spaces or marlcs) in YYMMOO fash ion . Ftbruo1ry 13, 198Sis written 8S0213.

DO form 1"6/1R, AU(; 15

~v10w1 .Ohont, .,._ ~ft

'14,•iwot ,,.,. ,

97

98

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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Cite as: 590 U. S. ____ (2020)

99

Appendix D to opinion of ALITO, J.

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100

~Aloi(

I SOCIAL SECURITY NUIIIIBER

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

H . •r• you now o, ~you~ Nationa t G_,.,d , fC.- __

tt,• -.n '" an, ,-.,ua., o, ,..,. , .. r,r•n ch ot '""• Af'~ed Jorce, o, ,n'"• A rmtt ~ • t1on.a1Gua rd or A,r

,,_ ~-,.,•

OOlo,lft }14 •- o, 00Form115 o,NGllo,m 12 to r n-• I

YES 1110

21. ., .y ou"°""°' ~you...,

.... nowo, ceo o, 199• 11r wcw, ,,. o., 14 · yEs .· lff\t. , tn ltlftt\ 19 .REMARKS .· tft • o•tt . OIA( f a na ((k,,jft

wn teft Qre,nN Otworce or ...,,_1WOilr•tlioift

I

<"'~•'" JO. tt •n,court o,o., o, ~ ,neffKt th.It 011.cu you to oro v,o• ,uooo,i ro,

o, a i1"'on,. , tf • VES"'ent• • ,n tt•m 39,

-.1..e ·R EMARKS.· the>

pt,ac:e, Mid <aurt wfh(ft 9,.tn t .o Attfflony or l1t,,tOPOt•'t"<1ua,n9 oro • r, , .,un 1n9 fro,., o •t• rruty 1u1ti

~.a., .. J1. .,• .,.. ,ou ..,. , ._.,. .,.,...., , •OPte"-"oeo . en., ~ . <•teid o• "•10by

State . "''"'•' Yor otn• r ••• •M orc•rn•n t o,

.......,.~.t•aat .,,,.'"., ,.,..n, .. •vtt'IOrft .. . ,...,.,...

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, 'UW <flat.on wu cr oooeo or o ,1m,11ed or you ..-.,. touno "ot 9u 11tyl 1nc 1uo e a ll
m, 1,ary w rw,c• 1f • YES• • :"'I•t, oet• ••' '" "•"' 35

._,_...,ldw_ rd Jl . A.J• , et,utt ot tlletft9arN"Md .

<,..,.rtea . '" " or n« tCIbv f f'Of'' • '· ~"-' • · ,,.,uu ,y o, ouw , 1.aw•111ot,cement or ,uw•nu•

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• ,outhful otf-

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of "'" • '" • ' tll• ••co, CItn }'011•C... IIH -n • 1t• •ed• or OU>erwtM

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35

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t•m• tn • ny ,.,.. or o ri t,0n , ' • form or 1noun, .. 1 IChOO'. or • Juw«noe fe ulrty o,

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wi ll ftOt

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YU NO

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(1) . (2) • ..., 01 N'- -

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of ,,..,.,.,..,, • . l\,lrtotlCl. LSDor ott1e r d.a"9■rous drugs .

•O> "-t11>--. on ,our -4191111,1ty1 10 ■nlort o r be a,,,,"'ISIIOMCI but 11_,n,. 1to accur•tit JOI>claUtfotlOI\ . Addrt- •

._,,..,...,.. _,,.,,...-..c ~ or officertta,n,nv KIIOOI

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

(2) H_ _,_....,.

• ..,.....,otnarcotlG . LSDor Ot"■ r oan~rous oruo1orffla r.1uana >

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Are you a homosexual or a bisexual?("Homosexual" is defined as: sexualdesire or oenav1oar ireCleeal t a person(s) ot ones own

sex. "Bisexual"is definedas: a person sexually responsive to both sexes.)

,t: Do you intendto engage in homosexualacts (sexual relationswith another personof the same sex)?

·

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ton'""'•'" t,o,w, of

or wh ,ch h•1 ..iool.O t n• P()4t<yo l •0-..1 ,ng the COfflffl •-

_t, •It•- - "'"" ..no.. - (o,,fl it 11t0n o t ,,.. ur11ttd Statn or Wllt(h

10

~- ..-.fa . unconfflWtlOna l m..... I ,,, "YES, · v,...···"' '",..,..Jt . ""fM,AIIICS .,

o1 am of lo,lft of

,&OE~

101

102

BOSTOCK v. CLAYTON COUNTY

/IIAME

I~Q(IA L SECVl\lfV NUMIUI

Tl OTHla t"'CIUJIIOUND DAta

• rq,v,,•.,•,..,.,. "'""'Nf ..... ,OU ... 1 b-led to , Of l'ftOdeclon, • I01•'9"

da~t

trav•II ~"91'"''"9ott,c111Ovt.- 1 (If • '1'£j, • -Olll•lh

tJ I

~ th• Vn'1.a ~t.tft

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Arll!«I ►- \1ncludl"9

..u ..0

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-••nu- ( , Alt ,ou - d•-•nQ , ..,. Ila yau h• ... an .pp1 .... ,,o,, Nf1Gln9 , o• tDO•O•II far : iwtorad pay, DIUDdlty allaw•nc•.

IY1 ,

o, 1 ~ fl'O'!' fflt oo,,.,11mt1tt of,,_ uno1w ~t.'-"'

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"''OIINonAOTC.IIINOI' ROTC.Su CNf~ "•OV••m, o, flaw -,ov
"llfM.61tl(S .,

a "'•"'"' qt.,._. C:,vo.l,, Pa~? (" "'l'H . •

M , UNOt•P,UU)IIIIG
•• I wncMntand that an on91n.al.nhnment 00119Jt.S ""• to WNe 1ntha ~nned Forc:n for II penod of eioht (81years (olCtlveanc, 1n.l('t1ve Ch,,ty1l 1rilt1U00l"ter di:tene,ved .

b. "'l'LICANn INITLAU,

Appendix D to opinion of ALITO, J.

SECTION IV • Allil•IIKS

Jt . 1(111.HIU (E-rhlftill ___

.l

Cite as: 590 U. S. ____ (2020)

103

Appendix D to opinion of ALITO, J.

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104

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BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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iuu, • ntntml'llln NH ~ uru:, ~ camol1410w 1U111'1d, n, V-Mwn t ( u1N -"d .,. 1tucn 1d to1.'t " D~V-,Ot' l'l

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

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105

106

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

N&Ml

I 10( .... 1,(i,1A1T\' "'"MUii

NOTE VSf TMri00 IOIM '"' .. or o,nv IP r"""' nrn011 ~ TO '"r Ai.llC,Uo1r\ lrCOIID o• Ml~ITH\' 1111ocrH1111c;

SECTION \'II • ,AAENTAI.I (;UAAOIAN C:ONS(NTf0~ INUST't,t.l. T

.itii 1.PA•tlfT , ~UA•Ouu•~ ~lol TtlatfNff S) ''-'Mou, OOl"f,ornnar ,11J1J<u•01• 1

,..--.c... ~ 11w• <•ndy th.ar ""'~' ,.._ ol

11

b ~QR ENIISTMfNT IN A_MSt$YCtO: MPO!:;ffNT

I"" hu no oth,r 1,011 oueroI1n other 1n.an m•, 11\ fr'IO I /

we c0111e,,t to h11

tnlrnffl•n1 ,11 ,,,. Ul'l•lfll St119'

llrt .. , llrMfffl al ~,c• /

llwl!' Ctr'\1fy\hit "'9 prom•lf) o• .1ny ~,no 1'1<1vaOHn 1!'110• 10 m•lu \ (On(eln1r1e,1•IO\JQnm,nt to OUW, tr<11ntn9, or promo,,o" ourinq h1Slhtr tn11nmtnt it f" •MYS""'!"~ 10 m♦/111 to \AQnth•s tonMnt . llw• ner,ov .au1no11u tnt Armed F0t<tt lll)f♦~~\ll•V«\ C0'1Clmed lo perlor,.. m,01til l ,x.aminu10"' · 011~, ea,1m,n,11r011irtourrN . ,,,d
to tOnd11(t rittor1h th«cu to ae1«rm1n1 n111ne111,9,b,h1>1, Uwe ,a1,nQ11tn •II Cl.l,fflto 1'11\/hittr,rv,c, ilnd to any 111119•
or como«nYIJon for ,uch wn,1ca .

,.,w VW• unotr1una t1,.a1, •• 1 ffllll'lblr of • "'"""•

C0"1DOnfflt, he/\h• must

fflllllfflUffl p•1100, of

1ct1v, duty lor tr,111nin9un1en •~cu,ect by comc>,tteM

au1/'lor1w. In the e11ent h&11he flill to fulfill In.

ot>l•Qai10111of h1llh«r ffl411"i'a enhrtment, h-1sh• .m•y

be ,,called to act,11e duty lK prl'Cribed bV law . 11-

1111'\h,1undff11and tNlt while hel1h« II 1n tM IHdy

r.-ttrvt , h«Jtt,e may be order.CS to Ht«noed 1cll11e

d11W,n 1,me of war or l'lat1or,1Iemergency d,clareo by

the Co119,.,1 o, tf\t P...,.dtnt ,,,, w,,.,, olhtl"W!'M'

olU1:hon11tdby ltw

C PA~CNT
C!I nlllllD DIIII....,,D ..... ......,,~

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

SIECTIOtiVl III• SU. T!MENT 0~ N,t.MI JOII OP,tQAI. MILJTAll'IU' COll:DS

.. . IIA"'I UIANQI, II trte pre1e,r-o •1111wl'ltl'II "•mt tl'leme 9,ver, l l'I ntm 2) 111'10i\nt W,Mt ei 01'1yo11rc,,,tt, ce!'\1f1ca\e ,

er,d •t t,e1 not ~" ch1nQ~ bV 119•1prO(eaur• ore,<rib,ect by 11.111I.•aw, el'ICI11 11'lh• t:am• ,H OIi ,.ovr toeitl M<11"tr

n..,mc,e, caret, comalete 'lht IOllow,n; :
• NAMl .U lMOWN ON IIR TM CEATIF•~Tl

., • Nill~ AJ 5'!0¥¥N ON iO<W. itCU~lfT NY... U~ (.&N)

C, I lltr•t>y IUlf 1ll•t I "'•"" '1ot Ch■"94"1 my neme U1r0\l9h eny coun or otMr 199el pn,ced..,re ; that I prefer to use

IMl'llffleof

by which I em known in the community n • metter of

cam.er,1-nct •"Cl w,111no cnm,net inwnt.
"'°""'""llem 2,
d WlfNfS\
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I ful'Vlltr ne-. that I am the -

11• ,1u...,.

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penon a the per,ot1 whow n■l'M it
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.,...,.,out•o ,r,n"'I ,,. fli,t,,.,.,.

~..,.'

107

Cite as: 590 U. S. ____ (2020)

1

KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE KAVANAUGH, dissenting.
Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII

2

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.
The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.1

—————— 1 Although this opinion does not separately analyze discrimination on
the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity.

Cite as: 590 U. S. ____ (2020)

3

KAVANAUGH, J., dissenting
I
Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.
Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81 Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited disability discrimination against federal and certain other employees. 87 Stat. 355. In 1990, Congress passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the

—————— 2 In full, the statute provides: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added).
As the Court today recognizes, Title VII contains an important exemption for religious organizations. §2000e–1(a); see also §2000e–2(e). The First Amendment also safeguards the employment decisions of religious employers. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188–195 (2012). So too, the Religious Freedom Restoration Act of 1993 exempts employers from federal laws that substantially burden the exercise of religion, subject to limited exceptions. §2000bb–1.

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law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers.
For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.
In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.
If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. As James Madison stated: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.” The Federalist No. 47, at 326 (citing Montesquieu). If judges could, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature—unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives.
Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges

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considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.
But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach. Ante, at 9–12.
For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts.

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First, courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation 24 (1997). Or as Professor Eskridge stated: The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016) (footnote omitted). Or as Professor Manning put it, proper statutory interpretation asks “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context. This approach recognizes that the literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as Professor Nelson wrote: No “mainstream judge is interested solely in the literal definitions of a statute’s words.” Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that temporal principle matters little because the ordinary meaning of “discriminate because of sex” was the same in 1964 as it is now.
Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to

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ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.
Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in the park” would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers.
The ordinary meaning principle is longstanding and well settled. Time and again, this Court has rejected literalism in favor of ordinary meaning. Take a few examples:
 The Court recognized that beans may be seeds “in the language of botany or natural history,” but concluded that beans are not seeds “in commerce” or “in common parlance.” Robertson v. Salomon, 130 U. S. 412, 414 (1889).
 The Court explained that tomatoes are literally “the fruit of a vine,” but “in the common language of the people,” tomatoes are vegetables. Nix v. Hedden, 149 U. S. 304, 307 (1893).
 The Court stated that the statutory term “vehicle” does not cover an aircraft: “No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air . . . . But in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” McBoyle v. United States, 283 U. S. 25, 26 (1931).
 The Court pointed out that “this Court’s interpretation of the three-judge-court statutes has frequently deviated from the path of literalism.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 96 (1974).

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 The Court refused a reading of “mineral deposits” that would include water, even if “water is a ‘mineral,’ in the broadest sense of that word,” because it would bring about a “major . . . alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.” Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 610, 616 (1978).
 The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States, 556 U. S. 816, 820 (2009).
 The Court rebuffed a literal reading of “personnel rules” that would encompass any rules that personnel must follow (as opposed to human resources rules about personnel), and stated that no one “using ordinary language would describe” personnel rules “in this manner.” Milner v. Department of Navy, 562 U. S. 562, 578 (2011).
 The Court explained that, when construing statutory phrases such as “arising from,” it avoids “uncritical literalism leading to results that no sensible person could have intended.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 9–10) (internal quotation marks omitted).
Those cases exemplify a deeply rooted principle: When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.
Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider phrases in statutes. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”)3
—————— 3 The full phrasing of the statute is provided above in footnote 2. This

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Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. Examples abound. An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.
This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase, rather than the meaning of words in the phrase. In FCC v. AT&T Inc., 562 U. S. 397 (2011), for example, the Court explained:
“AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.” Id., at 406.

—————— opinion uses “discriminate because of sex” as shorthand for “discriminate . . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordinary meaning of the statutory phrase “discriminate” because of sex is the same as the statutory phrase “to fail or refuse to hire or to discharge any individual” because of sex.

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Exactly right and exactly on point in this case. Justice Scalia explained the extraordinary importance of
hewing to the ordinary meaning of a phrase: “Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text. In the words of Learned Hand: ‘a sterile literalism . . . loses sight of the forest for the trees.’ The full body of a text contains implications that can alter the literal meaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Put another way, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F. 2d 809, 810–811 (CA2 1934) (L. Hand, J.). Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. Dictionaries are not “always useful for determining the ordinary meaning of word clusters (like ‘driving a vehicle’) or phrases and clauses or entire sentences.” Id., at 44. And we must recognize that a phrase can cover a “dramatically smaller category than either component term.” Id., at 62.
If the usual evidence indicates that a statutory phrase bears an ordinary meaning different from the literal strung-together definitions of the individual words in the phrase, we may not ignore or gloss over that discrepancy. “Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example of the meaning of each is selected, the ‘plain meaning’ of the statute leads to a particular result. No theory of interpretation, including textualism itself, is premised on such an approach.” 883 F. 3d 100, 144, n. 7 (CA2 2018) (Lynch, J., dissenting).4

—————— 4 Another longstanding canon of statutory interpretation—the absurd-
ity canon—similarly reflects the law’s focus on ordinary meaning rather

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In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. See ante, at 5–9. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.
A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. It destabilizes the rule of law and thwarts democratic accountability. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law, at 81; see Scalia, A Matter of Interpretation, at 17.
Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
Second, in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no.

—————— than literal meaning. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. The absurdity canon, properly understood, is “an implementation of (rather than . . . an exception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72 (2016). “What the rule of absurdity seeks to do is what all rules of interpretation seek to do: make sense of the text.” A. Scalia & B. Garner, Reading Law 235 (2012).

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On occasion, it can be difficult for judges to assess ordinary meaning. Not here. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.
As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante, at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted. New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7); see Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 4) (using a conversation between friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___–___ (2018) (slip op., at 2–3) (similar); AT&T, 562 U. S., at 403– 404 (similar).
Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of

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the other—as the majority opinion does—misapprehends common language, human psychology, and real life. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 363 (CA7 2017) (Sykes, J., dissenting).
It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Since enacting Title VII in 1964, Congress has never treated sexual orientation discrimination the same as, or as a form of, sex discrimination. Instead, Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination.
Many federal statutes prohibit sex discrimination, and many federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination.5
—————— 5 See 18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gen-
der, sexual orientation”); 20 U. S. C. §1092(f )(1)(F)(ii) (requiring funding recipients to collect statistics on crimes motivated by the victim’s “gender, . . . sexual orientation”); 34 U. S. C. §12291(b)(13)(A) (prohibiting discrimination on the basis of “sex, . . . sexual orientation”); §30501(1)

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That longstanding and widespread congressional practice matters. When interpreting statutes, as the Court has often said, we “usually presume differences in language” convey “differences in meaning.” Wisconsin Central, 585 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. As Justice Scalia explained for the Court, “it is not our function” to “treat alike subjects that different Congresses have chosen to treat differently.” West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991); see id., at 92.
And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” Eskridge, Interpreting Law, at 415; see University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 357 (2013); Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 297–298 (2006); Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341–342 (2005); Custis v. United States, 511 U. S. 485, 491–493 (1994); West Virginia Univ. Hospitals, 499 U. S., at 99.

—————— (identifying violence motivated by “gender, sexual orientation” as national problem); §30503(a)(1)(C) (authorizing Attorney General to assist state, local, and tribal investigations of crimes motivated by the victim’s “gender, sexual orientation”); §§41305(b)(1), (3) (requiring Attorney General to acquire data on crimes motivated by “gender . . . , sexual orientation,” but disclaiming any cause of action including one “based on discrimination due to sexual orientation”); 42 U. S. C. §294e–1(b)(2) (conditioning funding on institution’s inclusion of persons of “different genders and sexual orientations”); see also United States Sentencing Commission, Guidelines Manual §3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was motivated by the victim’s “gender . . . or sexual orientation”); 2E Guide to Judiciary Policy §320 (2019) (prohibiting judicial discrimination because of “sex, . . . sexual orientation”).

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So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories.
Where possible, we also strive to interpret statutes so as not to create undue surplusage. It is not uncommon to find some scattered redundancies in statutes. But reading sex discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled throughout the U. S. Code in laws enacted over the last 25 years.
In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
The story is the same with bills proposed in Congress. Since the 1970s, Members of Congress have introduced many bills to prohibit sexual orientation discrimination in the workplace. Until very recently, all of those bills would have expressly established sexual orientation as a separately proscribed category of discrimination. The bills did not define sex discrimination to encompass sexual orientation discrimination.6
—————— 6 See, e.g., H. R. 14752, 93d Cong., 2d Sess., §§6, 11 (1974) (amending
Title VII “by adding after the word ‘sex’ ” the words “ ‘sexual orientation,’ ” defined as “choice of sexual partner according to gender”); H. R. 451, 95th Cong., 1st Sess., §§6, 11 (1977) (“adding after the word ‘sex,’ . . . ‘affectional or sexual preference,’ ” defined as “having or manifesting an emotional or physical attachment to another consenting person or persons of either gender, or having or manifesting a preference for such

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KAVANAUGH, J., dissenting
The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 186–188 (1994). Rather, the proposed bills are telling because they, like the enacted laws, further demonstrate the widespread usage of the English language in the United States: Sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
Presidential Executive Orders reflect that same common understanding. In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that did the same. Exec. Order No. 11375, 3 CFR 684 (1966– 1970 Comp.); Exec. Order No. 11478, id., at 803. In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. Exec. Order No. 13087, 3 CFR 191 (1999). The Nixon and Clinton Executive Orders remain in effect today.

—————— attachment”); S. 1708, 97th Cong., 1st Sess., §§1, 2 (1981) (“inserting after ‘sex’ . . . ‘sexual orientation,’ ” defined as “ ‘homosexuality, heterosexuality, and bisexuality’ ”); H. R. 230, 99th Cong., 1st Sess., §§4, 8 (1985) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); S. 47, 101st Cong., 1st Sess., §§5, 9 (1989) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d Cong., 1st Sess., §2 (1993) (prohibiting discrimination “on account of . . . sexual orientation” without definition); H. R. 1858, 105th Cong., 1st Sess., §§3, 4 (1997) (prohibiting discrimination “on the basis of sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2692, 107th Cong., 1st Sess., §§3, 4 (2001) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2015, 110th Cong., 1st Sess., §§3, 4 (2007) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess., §§3, 4 (2011) (same).

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Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination.
Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. OPM has issued regulations that “govern . . . the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). Like the federal statutes and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination.
The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in

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employment, either by legislation applying to most workers,7 an executive order applying to public employees,8 or
—————— 7 See Cal. Govt. Code Ann. §12940(a) (West 2020 Cum. Supp.) (prohib-
iting discrimination because of “sex, . . . sexual orientation,” etc.); Colo. Rev. Stat. §24–34–402(1)(a) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Conn. Gen. Stat. §46a–81c (2017) (prohibiting discrimination because of “sexual orientation”); Del. Code Ann., Tit. 19, §711 (2018 Cum. Supp.) (prohibiting discrimination because of “sex (including pregnancy), sexual orientation,” etc.); D. C. Code §2– 1402.11(a)(1) (2019 Cum. Supp.) (prohibiting discrimination based on “sex, . . . sexual orientation,” etc.); Haw. Rev. Stat. §378–2(a)(1)(A) (2018 Cum. Supp.) (prohibiting discrimination because of “sex[,] . . . sexual orientation,” etc.); Ill. Comp. Stat., ch. 775, §§5/1–103(Q), 5/2–102(A) (West 2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Me. Rev. Stat. Ann., Tit. 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Md. State Govt. Code Ann. §20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Gen. Laws, ch. 151B, §4 (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Minn. Stat. §363A.08(2) (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Nev. Rev. Stat. §613.330(1) (2017) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. H. Rev. Stat. Ann. §354–A:7(I) (2018 Cum. Supp.) (prohibiting discrimination because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. §10:5–12(a) (West Supp. 2019) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); N. M. Stat. Ann. §28–1–7(A) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. Y. Exec. Law Ann. §296(1)(a) (West Supp. 2020) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); Ore. Rev. Stat. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I. Gen. Laws §28–5– 7(1) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat. Ann., Tit. 21, §495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Wash. Rev. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.).
8 See, e.g., Alaska Admin. Order No. 195 (2002) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment discrimination because of “sexual orientation”); Cal. Exec. Order No. B–

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both. Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately from the State’s ban on sex discrimination.
—————— 54–79 (1979) (prohibiting public-employment discrimination because of “sexual preference”); Colo. Exec. Order (Dec. 10, 1990) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ind. Governor’s Pol’y Statement (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No. 19–02 (2019) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Minn. Exec. Order No. 86–14 (1986) (prohibiting publicemployment discrimination because of “sexual orientation”); Mo. Exec. Order No. 10–24 (2010) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mont. Exec. Order No. 04– 2016 (2016) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); N. H. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “sex, sexual orientation,” etc.); N. J. Exec. Order No. 39 (1991) (prohibiting publicemployment discrimination because of “sexual orientation”); N. C. Exec. Order No. 24 (2017) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ohio Exec. Order No. 2019– 05D (2019) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ore. Exec. Order No. 19–08 (2019) (prohibiting public-employment discrimination because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); R. I. Exec. Order No. 93–1 (1993) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Va. Exec. Order No. 1 (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Wis. Exec. Order No. 1 (2019) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); cf. Wis. Stat. §§111.36(1)(d)(1), 111.321 (2016) (prohibiting employment discrimination because of sex, defined as including discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019– 9 (2019) (prohibiting public-employment discrimination because of “sex,” defined as including “sexual orientation”).

20

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That common usage in the States underscores that sexual orientation discrimination is commonly understood as a legal concept distinct from sex discrimination.
And it is the common understanding in this Court as well. Since 1971, the Court has employed rigorous or heightened constitutional scrutiny of laws that classify on the basis of sex. See United States v. Virginia, 518 U. S. 515, 531–533 (1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136– 137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976); Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971). Over the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause. See Bowers v. Hardwick, 478 U. S. 186 (1986); Romer v. Evans, 517 U. S. 620 (1996); Lawrence v. Texas, 539 U. S. 558 (2003); United States v. Windsor, 570 U. S. 744 (2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices have participated in those cases. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. The opinions in those five cases contain no trace of such reasoning. That is presumably because everyone on this Court, too, has long understood that sexual orientation

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discrimination is distinct from, and not a form of, sex discrimination.
In sum, all of the usual indicators of ordinary meaning— common parlance, common usage by Congress, the practice in the Executive Branch, the laws in the States, and the decisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The usage has been consistent across decades, in both the federal and state contexts.
Judge Sykes summarized the law and language this way: “To a fluent speaker of the English language—then and now—. . . discrimination ‘because of sex’ is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
To tie it all together, the plaintiffs have only two routes to succeed here. Either they can say that literal meaning overrides ordinary meaning when the two conflict. Or they can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles of statutory interpretation. And the second contradicts the widespread ordinary use of the English language in America.
II
Until the last few years, every U. S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30

22

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judges.9 The unanimity of those 30 federal judges shows that the
question as a matter of law, as compared to as a matter of policy, was not deemed close. Those 30 judges realized a seemingly obvious point: Title VII is not a general grant of authority for judges to fashion an evolving common law of equal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination. And under the separation of powers, Congress—not the courts—possesses the authority to amend or update the law, as Congress has done with age discrimination and disability discrimination, for example.
So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed. Rather, the judges’ decisions have evolved.
To be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase and the meaning of a phrase’s individual words could differ, it dismisses phrasal meaning for purposes of this case. The majority opinion repeatedly seizes on the meaning of the
—————— 9 See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–
259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001); Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth v. Children’s Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085 (CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005).

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statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See ante, at 5–9, 17, 24–26. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination.
The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. Ante, at 20, 23–30. Of course that is true. No one disagrees. It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998).
But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In the early years after Title VII was enacted, some may have wondered whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against women and discrimination on the basis of sex against men are both understood as discrimination because of sex (back in 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect

24

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to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (internal quotation marks omitted).10
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.

—————— 10 An amicus brief supporting the plaintiffs suggests that the plaintiffs’
interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analytical components of Brown. One issue was the meaning of “equal protection.” The Court determined that black Americans—like all Americans—have an individual equal protection right against state discrimination on the basis of race. (That point is also directly made in Bolling v. Sharpe, 347 U. S. 497, 499–500 (1954).) Separate but equal is not equal. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal protection principle to public schools in the same way that the Court applies, for example, the First Amendment to the Internet and the Fourth Amendment to cars.
This case raises the same kind of inquiry as the first question in Brown. There, the question was what equal protection meant. Here, the question is what “discriminate because of sex” means. If this case raised the question whether the sex discrimination principle in Title VII applied to some category of employers unknown in 1964, such as to social media companies, it might be a case in Brown’s second category, akin to the question whether the racial nondiscrimination principle applied to public schools. But that is not this case.

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To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion).
The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.
As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.”

26

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Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J., dissenting).
I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.
* * *
In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation— the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.
It is true that meaningful legislative action takes time— often too much time, especially in the unwieldy morass on

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Capitol Hill. But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson, 582 U. S., at ___–___ (slip op., at 10–11).
Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the

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Court’s judgment.

 
 NO.
In the Supreme Court of the United States
ALTITUDE EXPRESS, INC., et al., Petitioners,
v. MELISSA ZARDA, et al.,
Respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit
PETITION FOR WRIT OF CERTIORARI
SAUL D. ZABELL Counsel of Record
RYAN T. BIESENBACH ZABELL & ASSOCIATES, P.C. 1 Corporate Drive, Suite 103 Bohemia, New York 11716 T: (631) 589-7242 F: (631) 563-7475 SZabell@laborlawsny.com
Counsel for Petitioners
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
QUESTION PRESENTED
Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

ii
PARTIES TO THE PROCEEDING
Petitioners, defendants below, are Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard.
Respondents, plaintiffs below, are 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.
RULE 29.6 STATEMENT
Petitioner, Altitude Express, Inc., formerly doing business as Skydive Long Island, was a business corporation organized and existing under the laws of the State of New York. It was not a government entity, there were no parent corporations, nor did any publicly held corporation hold 10% or more of its stock.

iii
TABLE OF CONTENTS QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELEVANT STATUTORY PROVISION . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 I. THE UNDERLYING EVENTS . . . . . . . . . . . . . . . 2 II. THE DISTRICT COURT PROCEEDINGS . . . . . 3 III. THE APPELLATE PROCEEDINGS . . . . . . . . . 6 REASONS FOR GRANTING THE WRIT . . . . . . . . 9 I. THE COURTS OF APPEALS AND
FEDERAL AGENCIES REMAIN DIVIDED ON THIS QUESTION . . . . . . . . . . . . . . . . . 11 II. THE SECOND CIRCUIT DECISION DOES NOT FOLLOW FROM A FAIR INTERPRETATION OF TITLE VII . . . . . . 14 III. THE METHODOLOGY APPLIED BY THE SECOND CIRCUIT IN EXPANDING THE SCOPE OF TITLE VII IS FLAWED . . . . . . 23

iv
A. The “But For” Test Is Not an Appropriate Methodology for Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Sexual Orientation Discrimination Is Not, Ispso Facto, Gender Stereotyping under Price Waterhouse . . . . . . . . . . . . . . . . . . . 27
C. Theories of “Associational Discrimination” Do Not Allow for a Judicial Expansion of Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . 29
IV. THIS CASE IS THE APPROPRIATE VEHICLE FOR RESOLVING THE QUESTION PRESENTED . . . . . . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
APPENDIX
Appendix A Opinion on Rehearing in the United States Court of Appeals for the Second Circuit (February 26, 2018) . . . . . . . . . . . App. 1
Appendix B Opinion in the United States Court of Appeals for the Second Circuit (April 18, 2017) . . . . . . . . . . . . App. 141
Appendix C Judgment in the United States District Court for the Eastern District of New York (October 28, 2015) . . . . . . . . . . App. 154

v
Appendix D Order on Rehearing En Banc in the United States Court of Appeals for the Second Circuit (May 25, 2017) . . . . . . . . . . . . . App. 156
Appendix E Transcript of Telephonic Hearing Before Honorable Joseph F. Bianco in the United States District Court, Eastern District of New York (March 28, 2014) . . . . . . . . . . . App. 158
Appendix F EEOC Charge . . . . . . . . . . . . . . App. 177

vi
TABLE OF AUTHORITIES
CASES
Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) . . 4, 5, 7, 13, 23
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) . . . . . . . . . . . . . . . . 12
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) . . . . . . . . . . . . . . . 19
City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978) . . . . . . . . . . . 24, 25
DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979) . . . . . . . . . . . . . . . 19
Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074 (Feb. 14, 1990) . . . . . . . . . . . . . . . . . . . 22
Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), , cert denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). . . 13, 31
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . . . 19
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) . . . . . . . . . . . . . . . . . . . . . . 22
Gross v. FBL Fin. Services, Inc., 557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . 24
Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000) . . . . . . . 12

vii
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . . 18
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) . . . . . . . . . . . . . . . . . . . . 15
Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985) . . . . . . . . . . . . . . . . . . . . . . 15
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) . . . . . . . . . . . . . . . 12
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) . . . . . . . . . . . passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) . . . . . . . . . . . . . . . . 29
I.N.S. v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . 10
Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . 19
Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 29
Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005) . . . . . . . . . . . . . 13
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998, 140 L.Ed.2d 201 (1998) . . . . . . . . . . . . . . . . 12, 18
Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986) . . . . . . . . . . . . . . 29

viii
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . . 19
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . 15, 22, 27, 28
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) . . . . . . . . . . . . . . 13
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . 6
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014) . . . . . . . . . . . . . . . . . . . . . 14
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) . . . . . . . . . . . 4, 5, 6, 12
Stanard v. Olesen, 74 S. Ct. 768 (1954) . . . . . . . . . . . . . . . . . . . . . . 15
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999) . . . . . . . . . . . . . . . 29
Texas Department of Housing & Community Affairs v. Inclusive Communications Project, Inc., 135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . . . . . 19
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) . . . . . . . . . . . . . . . . . . . . . . 24
Vasquez v. Hillery, 474 U.S. 254 (1986) . . . . . . . . . . . . . . . . . . . . . . 19
Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006) . . . . . . . . . . . . . . . 12

ix
Victory Carriers, Inc v. Law, 404 U.S. 202 (1971) . . . . . . . . . . . . . . . . . . . . . . 15
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) . . . . . . . . . . . . . . . . . . . . . . 22
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989) . . . . . . . . . . 12, 13, 19
Wrightson v. Pizza Hut of Am., 99 F.3d 138 (4th Cir. 1996) . . . . . . . . . . . . . . . . 12
Zambrano-Lamhaouhi v. New York City Bd. Of Educ., 866 F. Supp. 2d 147 (E.D.N.Y. 2011) . 6
CONSTITUTION, STATUTES, REGULATIONS, LEGISLATIVE MATERIAL, AND EXECUTIVE ORDERS
U.S. Const. art. I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . 11
5 C.F.R. § 300.103(c) . . . . . . . . . . . . . . . . . . . . . . . . 11
5 U.S.C. § 2302(b)(10) . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. § 249(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 11
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . passim
42 U.S.C. § 2000e(k) . . . . . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 2000e-2(k) . . . . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 2000e-2(m) . . . . . . . . . . . . . . . . . . . 22, 23
42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . 13

x
42 U.S.C. § 2000e-5(g)(2) . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 13925(b)(13)(A) . . . . . . . . . . . . . . . . . . 11
New York State Human Rights Law, NY EXEC. LAW § 296, et seq. . . . . . . . . . . . . . . . . . . . . . . 4, 6
A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975) . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Act of 1991, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) 19, 22
Civil Rights Act of 1993, H.R. 431, 103d Cong. (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments of 1975, H.R. 166, 94thCong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

xi
Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1975, H.R. 451, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1979, H.R. 2074, 95th Cong. (1979) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20

xii
Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985) . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1985, S. 1432, 99th Cong. (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, H.R. 709, 100tth Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1989, H.R. 655, 101st Cong. (1989) . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1989, S. 47, 101st Cong. (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Civil Rights Amendments Act of 1991, S. 574, 102nd Cong. (1991) . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995) . . . . . . . . . . . . . . . . . . . . . . . 21

xiii
Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong. (1998) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong. (1999) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2003, H.R. 214, 108th Cong. (2003) . . . . . . . . . . . . . . . . . . . . . . . 21
Civil Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005) . . . . . . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong. (1994) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1995, S. 932, 104th Cong. (1995) . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong. (1996) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1997, H.R. 1858, 105th Cong. (1997) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1997, S. 869, 105th Cong. (1997) . . . . . . . . . . . . . . . . . 21

xiv
Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong. (1999) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong. (1999) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong. (2001) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2003, S. 1705, 108th Cong. (2003) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2003, H.R. 3285, 108th Cong. (2003) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (2007) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2009, S. 1584, 111th Cong. (2009) . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2011, H.R. 1397, 112th Cong. (2011) . . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011) . . . . . . . . . . . . . . . . . 21

xv
Employment Non-Discrimination Act of 2013, S. 815 113th Cong. (2013) . . . . . . . . . . . . . . . . . 21
Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013) . . . . . . . . . . . . . . . . . . 21
Equality Act of 1974, H.R. 14752, 93d Cong. (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Equality Act, H.R. 3185, 114th Cong. (2015) . . . . . 21
Equality Act, S. 1858, 114th Cong. (2015) . . . . . . . 21
Equality Act, H.R. 2282, 115th Cong. (2017) . . . . . 21
Equality Act, S. 1006, 115th Cong. (2017) . . . . . . . 21
Exec. Order 13,672 (July 21, 2014) . . . . . . . . . . . . 11
Exec. Order 13,087 (May 29, 1998) . . . . . . . . . . . . 11
OTHER AUTHORITIES
The American Heritage Dictionary of the English Language (1st ed. 1969) . . . . . . . . . . . . . . . . . . . 16
The American Heritage Desk Dictionary (5th ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15- 3775 (2d Cir. July 26, 2017), 2017 WL 3277292 . . . . . . . . . . . . . . . 14
Dictionary.com, accessed May 2, 2018 . . . . . . . 16, 17
The Federalist No. 47, (James Madison) (Carey & McClellan eds., 2001) . . . . . . . . . . . . . . . . . . . . . 10

xvi New Oxford American Dictionary (3d ed. 2010) . . 16 Oxford English Dictionary (2009 ed.) . . . . . . . . . . . 17

1
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners, Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard (collectively, “Petitioners”), respectfully petition this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit.
OPINIONS BELOW
The en banc opinion of the United States Court of Appeals for the Second Circuit (App. 1-140) is published at 883 F.3d 100. The per curium opinion of the Appellate Court (App. 141-153) is published at 855 F.3d 76. The order of the District Court (App. 154-156) is published at 855 F.3d 76.
JURISDICTION
The judgment of the court of appeals was entered on February 26, 2018. (App. 1-140). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISION
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII), provides in pertinent part: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of

2
such individual’s race, color, religion, sex, or national origin.”
STATEMENT OF THE CASE
I. THE UNDERLYING EVENTS
In the summer of 2010, Rosanna Orellana (“Orellana”) and her boyfriend, David Kengle (“Kengle”), went skydiving at Altitude Express. App. 11-12, 144-45. Each purchased tandem skydives, in which the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client so that the instructor can deploy the parachute and supervise the jump. Donald Zarda was Orellana’s instructor.1 Id. at 144-45.
At some point during the experience, Zarda informed Orellana that he was homosexual and “ha[d] an ex-husband” Id. at 12, 145. After a successful skydive, Orellana told Kengle that Zarda had inappropriately touched her in a flirtatious manner and disclosed his sexual orientation in an effort to excuse his otherwise inappropriate behavior. Id. at 12. Zarda alleges that he often informed female clients of his sexual orientation to allay any awkwardness that they may have felt about being strapped to a man for a tandem skydive. Id. at 145. Upon hearing about Zarda’s inappropriate touching, Kengle called Altitude
1 Donald Zarda died in a skydiving accident after the District Court awarded partial summary judgment to Petitioners, but prior to trial on his remaining claims. The executors of his estate were substituted in his place. App. at 8. Zarda and the executors of his estate are referred to collectively as “Zarda”.

3
Express and its owner, Ray Maynard, to complain. Id. at 12. Zarda, who had a history of similar complaints of inappropriate behavior, was terminated shortly thereafter. Id. at 145.
One (1) month after being terminated, Zarda filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. at 12. In his EEOC charge, Zarda stated “[he was] not making this charge on the grounds that [he] was discriminated on the grounds [sic] of [his] sexual orientation. Rather . . . in addition to being discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.” Id. at 14-15. Moreover, Zarda claimed that “[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” Id. at 12.
II. THE DISTRICT COURT PROCEEDINGS
On September 23, 2010, Zarda brought suit in the United States District Court for the Eastern District of New York alleging, inter alia, sex stereotyping in violation of Title VII and sexual orientation discrimination in violation of the New York State

4
Human Rights Law, NY EXEC. LAW § 296, et seq. (“NYSHRL”).2 App. 144. Citing to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), overruled by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), Petitioners moved for summary judgment. Id. at 12-13. On March 28, 2014, the District Court (Bianco, J.) determined that there was a genuine dispute of material fact regarding the reason for Zarda’s termination and concluded that Zarda was entitled to a trial limited to his pending state-law cause of action. Id. at 13. By contrast, Zarda’s Title VII claim was dismissed because he failed to establish a prima facie case of sex stereotyping discrimination under Title VII. Id. Notably, in an oral decision the District Court rejected Zarda’s familiar sex stereotyping argument, stating, “[t]here’s simply no evidence to believe that that stereotype was motivating Mr. Maynard in this situation. There’s no, for example there’s no evidence of comments, there’s no female comparators who were treated differently. There is literally nothing to support that theory.” App. at 162. In fact, Zarda had testified under oath that he was “masculine in appearance.” App. at 164.
While Zarda’s remaining claims were still pending, the EEOC issued its decision in Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015). In Baldwin, the EEOC took the position that “allegations of discrimination on the basis
2 Zarda also alleged violations of state and federal laws related to overtime and minimum wage. App. 144. Although nongermane to the issues herein, Zarda’s overtime and minimum wage claims were ultimately dismissed. App. at 154, 169.

5
of sexual orientation necessarily state a claim of discrimination on the basis of sex.” 2015 WL 4397641 at *10. In so holding, the EEOC identified three (3) ways for a claimant to illustrate what it described as the “inescapable link between allegations of sexual orientation discrimination and sex discrimination.” Id. at *5. First, sexual orientation discrimination “is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. Second, it is “associational discrimination” because “an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Id. at *6. Third, sexual orientation discrimination “necessarily involves discrimination based on gender stereotypes,” most commonly, “heterosexually defined gender norms.” Id. at *7–8 (internal quotation marks omitted). Shortly after the publication of Baldwin, Zarda moved to have his Title VII claim reinstated. App. at 14. The District Court denied the motion, concluding that Simonton, supra, remained binding precedent and barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII. Id.
All facts forming the basis of Zarda’s putative sexual orientation claim arising under Title VII were tried before a jury of his peers within the context of the

6
NYSHRL.3 Id. Upon the completion of a fair and proper trial, Zarda’s remaining claims were determined to be unfounded and dismissed with prejudice. Id. at 154-55. Zarda appealed.
III. THE APPELLATE PROCEEDINGS
On April 18, 2017, a unanimous panel of the Second Circuit affirmed, inter alia, the District Court’s holding in regard to Zarda’s Title VII claim. Id. at 153. The per curium panel noted that Zarda did not appeal the trial court’s determination that he failed to establish the requisite proximity between his termination and his failure to conform to sex stereotypes. Id. at 150. Rather, Zarda requested that the Second Circuit reconsider its long-held interpretation of Title VII to now hold the statute’s prohibition on discrimination based on “sex” encompasses discrimination based on “sexual orientation”. Id. at 144. The panel, however, declined to revisit Simonton, supra, stating that Second Circuit precedent could only be overturned by a decision of the court sitting en banc. Id. at 149.
Zarda petitioned the Second Circuit for a rehearing en banc. His petition was granted by a majority of the active judges of the Circuit Court. Id. at 156-57. Consequently, the parties were instructed to brief only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit sexual orientation through
3 Notably, Zarda’s gender stereotyping claims brought under the NYSHRL were subject to the identical analysis as those brought under Title VII. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n. 10 (2d Cir. 2011); Zambrano-Lamhaouhi v. New York City Bd. Of Educ., 866 F. Supp. 2d 147, 159 (E.D.N.Y. 2011).

7
its prohibition of discrimination ‘because of . . . sex’?”. Id. at 157.
On February 26, 2018, the en banc decision of the Second Circuit vacated the District Court’s judgment on Zarda’s Title VII claim and remanded the case for further proceedings. App. at 61.4 Overturning Simonton, supra, the en banc majority held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII. Id. at 20. The en banc majority did not contest the principle “that it is not ‘even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation.” Id. at 23, 137. Rather, the majority breaks from typical or customary statutory analysis and states that when interpreted in light of the recognition of sexual harassment and hostile work environment claims, “the broad language Congress used” in Title VII must necessarily be read to apply “to any practice in which sex is a motivating factor.” Id. at 59. Echoing the holdings in Baldwin, supra, and Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339 (7th Cir. 2017), the majority buttresses its conclusion on three (3) grounds:
4 The Second Circuit decision affirmed the judgment of the District Court in all other respects. See generally, App. at 3.

8
[S]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted . . . Sexual orientation discrimination is also based on assumption of stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.
Id. at 60.
Judge Lynch heads the dissenting opinions. Id. at 72-136. Based principally on a recitation of the pre and post-enactment legislative history of Title VII, Judge Lynch’s dissent reasons that the original public meaning of “sex” in text of Title VII – which must invariably be the lodestar in statutory analysis – cannot reasonably be read to include sexual orientation as protected by the statute. Id. He continues, stating the majority attempts to “shoehorn sexual orientation discrimination into [Title VII’s] verbal template of discrimination based on sex” as an oversimplification of the statute:
Same-sex attraction is not “a function of sex” or “associated with sex” in the sense that life expectancy or childbearing capacity are. A

9
refusal to hire gay people cannot serve as a cover means of limiting employment opportunities for men or for women as such; a minority of both men and women are gay, and discriminating against them discriminates against them, as gay people, and does not differentially disadvantage employees or applicants of either sex.
Id. at 104 (emphasis original). The dissenting opinions further summarize the majority’s overreaching as a “chip[ping] away at the democratic and rule-of-law principles on which or system of governance is founded – the very principles we rely on to secure the legitimacy and the efficacy of our laws, including antidiscrimination legislation.” Id. 138 (Livingston, J., dissenting).
REASONS FOR GRANTING THE WRIT
The Court should grant this Petition because it presents a question of heightened significance over which there exists a growing divide amongst the Circuit Courts and provides an ideal vehicle for addressing this question.
At its core, this is a case of statutory construction. Although, to be sure, it is emblematic of the zeitgeist in American conscience and law respecting gender and sex. It demonstrates, inter alia, America’s ever evolving attitudes toward the civil rights of gay, lesbian, and bisexual individuals.5 Perhaps it was with an attuned
5 These terms are used interchangeably by use of the term “sexual orientation.”

10
sensitivity to these developments that the Second Circuit, joining the Seventh and the EEOC, departed from more than fifty (50) years of established precedent in reaching the conclusion that sexual orientation is among the enumerated classes of individuals protected by Title VII as a subset of “sex” discrimination.
Laudable as the ends may be, the means deployed by the Second Circuit nonetheless circumvent the immutable legislative process by which we remain bound to govern. As Judge Sykes set forth in the main dissent in Hively, these recent departures are “a judgeempowering, common-law decision method that leaves a great deal of room for judicial discretion. . . . Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges.” Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339, 360 (7th Cir. 2017) (Sykes, J. dissenting); see also The Federalist No. 47, at 251-52 (James Madison) (Carey & McClellan eds., 2001) (quoting Montesquieu “Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.’”). (emphasis original); I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) (noting that “hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of tits power, even to accomplish desirable objectives, must be resisted.”).

11
As citizens and a nation, we can strive for the level of inclusion reached by the Second Circuit. However, this cannot be achieved at the expense of compromising our democratic process. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. See U.S. Const. art. I, § 7. Statutory emendation by the judiciary cannot be reconciled with this construct.
Thus, the question before this Court is not whether, as a matter of policy, sexual orientation discrimination should be prohibited by statute, regulation, or employer action: Congress and the Executive Branch have acted in this regard by placing prohibitions on such discrimination in a number of differing contexts. See, e.g., 18 U.S.C. § 249(a)(2) (hate crimes); 42 U.S.C. § 13925(b)(13)(A) (certain federal funding programs); Exec. Order 13,672 (July 21, 2014) (government contracting); Exec. Order 13,087 (May 29, 1998) (federal employment); 5 C.F.R. § 300.103(c) (nonperformance-related treatment under the Civil Service Reform Act, 5 U.S.C. § 2302(b)(10)). Rather, what must be resolved is whether, as a matter of law, Title VII encompasses sexual orientation discrimination. The answer remains, as it has, no.
I. THE COURTS OF APPEALS AND FEDERAL AGENCIES REMAIN DIVIDED ON THIS QUESTION
The Second Circuit’s en banc majority holding that sexual orientation is a protected class under Title VII as a proxy for “sex” is the most recent irreconcilable

12
split on this issue. Prior to the Second Circuit’s decision, the Seventh Circuit was the lone appellate court to hold that sexual orientation is protected as a form of sex discrimination under Title VII. See Hively, 853 F3d 339. These recent holdings are in conflict with every other Circuit that has addressed this issue.
In fact, the distinction between “sex” and “sexual orientation” within the scope of Title VII is broadly accepted by courts nationwide. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“Title VII does not afford a cause of action for discrimination based upon sexual orientation. . . .”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (“[H]arassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.”); Williamson v. A.G. Edwards

13
& Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title VII does not prohibit discrimination against homosexuals.”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s protections, however, do not extend to harassment due to a person’s sexuality. . . . Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”) (internal quotations omitted); Evans v. Georgia Regional Hosp., 850 F3d 1248, 1256–57 (11th Cir 2017), cert denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017). Thus, the overwhelming weight of precedent pre-Hively is clear: discrimination based on sexual orientation is not prohibited by Title VII.
Moreover, the two (2) federal agencies empowered to enforce Title VII – the EEOC and the U.S. Department of Justice, see 42 U.S.C. § 2000e-5(f)(1) – have taken opposite positions on this issue. As set forth supra, with Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), the EEOC took the position that sexual orientation is protected under Title VII, the rationale for which has been adopted by the Second and Seventh Circuits. Conversely, the Department of Justice has reinforced the position held be the majority of remaining Circuits.

14
See Brief for the United States as Amicus Curiae Supporting Defendants-Appellees at 1, Zarda v. Altitude Express, Inc., No. 15- 3775 (2d Cir. July 26, 2017), 2017 WL 3277292.
That two Courts of Appeals are in conflict with their sister-Circuits on this issue, and the split amongst the EEOC and the Department of Justice, should, standing alone, compel that this Petition be granted.
II. THE SECOND CIRCUIT DECISION DOES NOT FOLLOW FROM A FAIR
INTERPRETATION OF TITLE VII
The Second Circuit concludes “the most natural reading of [Title VII’s] prohibition on discrimination ‘because of . . . sex’ is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.” Zarda v. Altitude Express, Inc., 883 F.3d 100, 112 (2d Cir. 2018). This is neither a fair or accurate reading of the text of Title VII, nor is it true to established precedent.
This Court mandates that statutes be interpreted not by the ebbs and flows of modern language but by reference to the original public meaning of the enactment. Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (citation and internal quotation marks omitted)). Just last Term, this Court unanimously held that the proper role of the judiciary in statutory interpretation is “to apply, not amend, the

15
work of the People’s representatives,” even when reasonable people might believe that “Congress should reenter the field and alter the judgments it made in the past.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). “[I]t is for Congress, not the courts, to write the law,” Stanard v. Olesen, 74 S. Ct. 768, 771 (1954), and where “Congress’ ... decisions are mistaken as a matter of policy, it is for Congress to change them. We should not legislate for them.” Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 427 (1985) (citing Victory Carriers, Inc v. Law, 404 U.S. 202, 216 (1971)). These axioms apply with equal force to Title VII and the circumstances underlying this Petition.
“In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The text of Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . .
42 U.S.C. § 2000e-2(a)(1). Absent from this proscriptive language is the ban on workplace discrimination based on an individual’s sexual orientation. In fact, since its enactment in 1964, the public meaning in Title VII’s

16
“because of . . . sex” has never encompassed a reading that includes “because of . . . sexual orientation.” See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 355 (7th Cir. 2017) (Posner, J., concurring) (“A broader understanding of the word ‘sex’ in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination.”).
To be clear, Title VII does not define discrimination “because of . . . sex.” Yet just as in the present, in 1964 the common, ordinary usage of the term “sex” intended biologically male or female; it did not also refer to sexual orientation. See, e.g., Sex, The American Heritage Dictionary of the English Language (1st ed. 1969) (defining “sex” as “[t]he property or quality by which organisms are classified according to their reproductive functions[;] [e]ither of two divisions, designated male and female, of this classification”); Sex, New Oxford American Dictionary (3d ed. 2010) (defining “sex” as “either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions”); Sex, The American Heritage Desk Dictionary (5th ed. 2013) (defining “sex” as “[e]ither of the two divisions, female and male, by which most organisms are classified on the basis of their reproductive organs and functions[;] [t]he condition or character of being female or male”); Sex, Dictionary.com, accessed May 2, 2018 (defining “sex” as “either the male or female division of a species, especially as differentiated with reference to the reproductive functions[;] the sum of the structural and

17
functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences[;] the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct.”); see also Sexual Orientation, Oxford English Dictionary (2009 ed.) (defining “sexual orientation” as “Originally: (the process of) orientation with respect to a sexual goal, potential mate, partner, etc. Later chiefly: a person’s sexual identity in relation to the gender to whom he or she is usually attracted; (broadly) the fact of being heterosexual, bisexual, or homosexual.”); Sexual Orientation, Dictionary.com, accessed May 2, 2018 (defining “sexual orientation” as “one’s natural preference in sexual partners; predilection for homosexuality, heterosexuality, or bisexuality.”); Hively v. Ivy Tech Community Coll. of Indiana, 853 F3d 339, n.3 (7th Cir 2017) (Sykes, J., dissenting) (“The term “sexual orientation” does not appear in dictionaries at or around the time of Title VII’s enactment. According to the current definition, it is not synonymous with “sex.”). Thus, to a fluent speaker of the English language, the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation”: The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. Id. at 363.
Invariably, legislation is adopted in response to social problems, whether they be actual or perceived. Legislators adopt and employ language to remediate these problems or accomplish the most good for the most people. The words used in legislation are used for

18
a reason; they often have specific, finite meanings. Of course, the march of time may extend the words beyond what the legislators who voted for the statute fully understood or intended. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”). Read in light of one of the social problems it was enacted to address, however, Title VII “remains a law aimed at gender inequality, and not at other forms of discrimination that were understood at the time, and continue to be understood, as a different kind of prejudice.” Zarda v Altitude Express, Inc., 883 F3d 100, 144 (2d Cir 2018) (Lynch, J., dissenting) (emphasis in original); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”) (Ginsburg, J., concurring).
As set forth supra, apart from the alternate interpretation of Title VII now expounded by the Second and Seventh Circuits, all other Circuits are in lock-step – and have been for decades – in holding sexual orientation is not prohibited under Title VII. This Court has stated that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, [however] it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the

19
sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon an arbitrary discretion.” Patterson v McLean Credit Union, 491 U.S. 164, 172 (1989) (internal citations and quotations omitted); see also Vasquez v. Hillery, 474 U.S. 254, 265 (1986) (stare decisis ensures that “the law will not merely change erratically” and “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals”).
Moreover, it is a well-established interpretive principle that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978); see Faragher v. City of Boca Raton, 524 U.S. 775, 792 (1998) (“[T]he force of precedent here is enhanced by Congress’s amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding.”); Texas Department of Housing & Community Affairs v. Inclusive Communications Project, Inc., 135 S. Ct. 2507 (2015). For decades after its initial enactment, courts unanimously held that sexual orientation is not protected by Title VII. By the time that Congress enacted the Civil Rights Act of 1991, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991), three (3) Courts of Appeals had ruled that Title VII did not cover sexual orientation. See Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); DeSantis v. Pac. Telephone and Telegraph Co., Inc., 608 F.2d 327 (9th Cir. 1979); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). This precedent

20
remained firm until Hively, supra. Against this backdrop, Congress has neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination. In fact, nearly every Congress since 1974 has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.6
6 See, e.g., Equality Act of 1974, H.R. 14752, 93d Cong. (1974), Civil Rights Amendments of 1975, H.R. 166, 94thCong. (1975), A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975), Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976), Civil Rights Amendments of 1975, H.R. 451, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977), Civil Rights Amendments Act of 1979, H.R. 2074, 95th Cong. (1979), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong.(1979), Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981), Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong.(1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong.(1983), Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983), Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983), Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985), Civil Rights Amendments Act of 1985, S. 1432, 99th Cong. (1985), Civil Rights Amendments Act of 1987, H.R. 709, 100tth Cong. (1987), Civil Rights Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1989, H.R. 655, 101st Cong. (1989), Civil Rights Amendments Act of 1989, S. 47, 101st Cong. (1989), Civil Rights

21
This is not to say that Congress has never acted to address judicial interpretation of Title VII. When this Court held that Title VII’s prohibition on
Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1991, S. 574, 102nd Cong. (1991), Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991), Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993), Civil Rights Act of 1993, H.R. 431, 103d Cong.(1993), Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong.(1994), Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong.(1994), Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995), Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong.(1995), Employment Non-Discrimination Act of 1995, S. 932, 104th Cong.(1995), Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong.(1996), Employment Non-Discrimination Act of 1997, H.R. 1858, 105thCong.(1997), Employment NonDiscrimination Act of 1997, S. 869, 105th Cong.(1997), Civil Rights Amendments Act of 1998, H.R. 365, 105th Cong. (1998), Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong. (1999), Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong.(1999), Employment Non-Discrimination Act of 1999, S. 1276, 106th Cong.(1999), Civil Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001), Employment Non-Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001), Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong. (2001), Civil Rights Amendments Act of 2003, H.R. 214, 108th Cong. (2003), Employment Non-Discrimination Act of 2003, S. 1705, 108thCong. (2003), Employment Non-Discrimination Act of 2003, H.R. 3285, 108th Cong. (2003), Civil Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005), Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007), Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (2007), Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009), Employment NonDiscrimination Act of 2009, S. 1584, 111th Cong. (2009), Employment Non-Discrimination Act of 2011, H.R. 1397, 112th Cong. (2011), Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011), Employment Non-Discrimination Act of 2013, S. 815 113th Cong. (2013), Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013), Equality Act, H.R. 3185, 114th Cong. (2015), Equality Act, S. 1858, 114th Cong. (2015), Equality Act, H.R. 2282, 115th Cong. (2017), Equality Act, S. 1006, 115th Cong. (2017).

22
discrimination “because of . . . sex” did not cover an employer’s exclusion of pregnancy from coverage under a disability-benefits plan, General Elec. Co. v. Gilbert, 429 U.S. 125, 135-40 (1976), Congress abrogated the holding in the Pregnancy Discrimination Act by specifying that Title VII’s prohibition on sex discrimination would be deemed to “include” discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Congress did not otherwise delineate the scope of the term “sex”. This abrogation of judicial application of Title VII was continued by modifications to the framework for disparate-impact claims in response to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), see 42 U.S.C. § 2000e-2(k), and for mixedmotive claims in response to Price Waterhouse v. Hopkins, 490 U.S. 490 U.S. 228 (1989), see 42 U.S.C. § 2000e-2(m), § 2000e-5(g)(2).
In 1991, Congress further amended Title VII. 7 See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). As Judge Lynch eloquently dissented in the appellate opinion, it is the unfortunate reality that “not everything offensive or immoral or economically inefficient is illegal, and if the view that a practice is offensive or immoral or economically efficient does not command sufficiently broad and deep political support to produce legislation prohibiting it, that practice will remain legal.” (Zarda v Altitude Express, Inc., 883 F.3d
7 By the time of the 1991 amendment to the Civil Rights Act, the EEOC had also held that sexual orientation discrimination fell “outside the purview of Title VII.” Dillon v. Frank, EEOC Doc. No. 01900157, 1990 WL 1111074, at *3 (Feb. 14, 1990).

23
100, 148 (2d Cir. 2018) (Lynch, J., dissenting). Thus, when Congress enacted the Civil Rights Act of 1991 it ratified the settled understanding that Title VII does not bar sexual orientation discrimination. This understanding continues to this day.
III. THE METHODOLOGY APPLIED BY THE SECOND CIRCUIT IN EXPANDING THE SCOPE OF TITLE VII IS FLAWED
Following the same rationale employed by the Seventh Circuit (Hively, supra) and the EEOC (Baldwin, supra), the Second Circuit found sexual orientation protected under Title VII premised on three (3) justifications: (A) sexual orientation discrimination is sex discrimination because it cannot occur “but for” the individual’s sex; (B) sexual orientation falls within Title VII’s prohibition on sex discrimination as a form of sex stereotyping; and (C) sexual orientation discrimination is akin to race-based “associational discrimination”. None passes thoughtful analysis.
A. The “But For” Test Is Not an Appropriate Methodology for Statutory Interpretation
As defined by Title VII, an employer has engaged in “impermissible consideration of . . . sex . . . in employment practices” when “sex . . . was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” 42 U.S.C. § 2000e-2(m). Thus, the critical inquiry in assessing whether an employment practice is in violation of Title VII “because of . . . sex” is whether sex was “a motivating factor in an adverse

24
employment decision.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 182 (2009). Referred to by the Second Circuit as the “comparator test” (App. at 66), a “but for” analysis aides in determining whether “the evidence shows treatment of a person in a manner which but for that person’s [protected characteristic] would be different.” City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (emphasis added) (internal quotations omitted).
The Second Circuit, drawing on the Seventh Circuit’s analysis in Hively, employed the “but for” test to interpret Title VII and concluded that sexual orientation discrimination is a subset of sex discrimination. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 116 (2d Cir. 2018) (majority) (internal citations omitted) (“[T]he Seventh Circuit compared Hively, a female professor attracted to women (who was denied a promotion), with a hypothetical scenario in which Hively was a male who was attracted to women (and received a promotion). Under this scenario, the Seventh Circuit concluded that, as alleged, Hively would not have been denied a promotion but for her sex, and therefore sexual orientation is a function of sex. From this conclusion, it follows that sexual orientation discrimination is a subset of sex discrimination.”).
However, the purpose of the “but for” analysis is to reveal an employer’s motive for taking the challenged action as a factual matter. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013) (“An employee who alleges status-based discrimination

25
under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. Socalled but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.”).
Applying the “but for” test in this manner puts the proverbial cart before the horse by employing hypotheticals to determine first whether sex is a motivating factor in discrimination based on sexual orientation before deciding whether sexual orientation is protected under Title VII. Said another way, the evidentiary “but for” test is a useful technique for discerning motive; it has no proper application in statutory interpretation, the paramount issue herein.
Further, the Second Circuit misapplies the “but for” test in its very application. As the majority stated, “[i]n the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” App. at 34. From its very premise, this application of the “but for” test fails by changing both the sexual orientation and the sex of their hypothetical subject. See City of Los Angeles, Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (describing the “simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be difference.’”). The proper

26
application would be to change the sex, but to otherwise maintain the sexual orientation in applying the “but for” test. As Judge Sykes correctly states in the main dissent in Hively:
As a test for isolating an actual case of sex discrimination, that way of framing the comparative question doesn’t do the trick. Simply put, the comparison can’t do its job of ruling in sex discrimination as the actual reason for the employer’s decision (by ruling out other possible motivations) if we’re not scrupulous about holding everything constant except the plaintiff’s sex. That includes the plaintiff’s sexual orientation. If we’re really serious about trying to isolate whether sex discrimination played a role in a specific employment decision, the test must exclude other factors that may have been decisive.
Hively v. Ivy Tech Community Coll. of Indiana, 853 F.3d 339, 366 (7th Cir. 2017) (Sykes, J., dissenting) (emphasis in original).
Essentially, the “but for” test is being used as an artifice to “interpret” the term “sexual orientation” for use in the context of Title VII. This test has no proper application in discerning the statutory text of Title VII.

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B. Sexual Orientation Discrimination Is Not, Ispso Facto, Gender Stereotyping under Price Waterhouse
Neither Price Waterhouse nor any other decision of this Court establishes an independent cause of action for, or “doctrine” or “theory” of, “sex stereotyping.” Price Waterhouse held only that the presence of gender stereotyping by an employer “can certainly be evidence” of sex discrimination; to prove her case, the plaintiff must always prove that “the employer actually relied on her gender in making its decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, at 251 (1989) (second emphasis added).
Moreover, even if an individual who identifies as homosexual can be the victim of gender stereotyping, it does not necessarily follow that in sexual orientation discrimination is interchangeable with the stereotypes otherwise barred by Price Waterhouse. As this Court explained, Title VII bars gender stereotypes insofar as that particular sort of “sex-based consideration[]” cause “disparate treatment of men and women.” Id. at 251. As Judge Sykes explained in the Hively dissent:
Heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all. An employer who hires only heterosexual employees is neither assuming nor insisting that his female and male employees match a stereotype specific to their sex. He is instead insisting that his employees match the dominant sexual orientation regardless of their

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sex. Sexual-orientation discrimination does not classify people according to invidious or idiosyncratic male or female stereotypes. It does not spring from a sex-specific bias at all.
Hively v. Ivy Tech Community Coll. of Indiana, 853 F.3d 339, 365–67 (7th Cir. 2017) (emphasis original).
In any event, the per curium panel of the Second Circuit correctly noted that Zarda did not appeal the trial court’s determination regarding his claim of discrimination premised on sex stereotypes. Id. at 150. In fact, the District Court rejected Zarda’s sex stereotyping argument, stating, “[t]here’s simply no evidence to believe that that stereotype was motivating Mr. Maynard in this situation. There’s no, for example there’s no evidence of comments, there’s no female comparators who were treated differently. There is literally nothing to support that theory.” App. at 162. There is thus no validity in the application to this matter to the theory propounded by the en banc majority that sexual orientation discrimination is ipso facto sex stereotyping.
An employer who discriminates based on sexual orientation alone does not run afoul of the sex stereotyping proscribed by Price Waterhouse. Although sex stereotyping is evidence that may support a claim of sex discrimination, it is not, by itself, always sex discrimination and cannot therefore support the proposition that sexual orientation is a proxy for sex under Title VII.

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C. Theories of “Associational Discrimination” Do Not Allow for a Judicial Expansion of Title VII
Sexual orientation discrimination is also not among the type of so-called “associational discrimination” prohibited by Title VII. Translating Loving v. Virginia, 388 U.S. 1 (1967) to the context of Title VII, Circuits to address the question of associational discrimination have done so through the statute’s prohibition on race discrimination. See e.g., Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999); Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888, 892 (11th Cir. 1986).
Loving’s equal-protection holding extends to Title VII racial-discrimination claims because those claims share the same contextual foundation: The racism inherent in anti-miscegenation laws. By contrast, any employer that discriminates against an employee in a same-sex relationship has not engaged in sex-based treatment of women as inferior to men (or vice versa), but rather based upon sex-neutral treatment directed at a distinct status: sexual orientation. As Judge Lynch explained in the lead dissent to the subject Second Circuit decision:
It is more difficult to imagine realistic hypotheticals in which an employer discriminated against anyone who so much as associated with men or with women, though I suppose academic examples of such behavior

30
could be conjured. But whatever such a case might look like, discrimination against gay people is not it. Discrimination against gay men, for example, plainly is not rooted in animus toward “protected third persons with whom [they] associate.” An employer who practices such discrimination is hostile to gay men, not to men in general; the animus runs not, as in the race and religion cases discussed above, against a “protected group” to which the employee’s associates belong, but against an (alas) unprotected group to which they belong: other gay men.
Zarda v. Altitude Express, Inc., 883 F.3d 100, 160 (2d Cir. 2018) (internal citations omitted and emphasis in original).
Thus, in the context of associational discrimination, sexual orientation cannot be substituted for race to achieve the same prohibitions under sex-based discrimination. Holding to the contrary is a judicial amendment to the prohibitions of Title VII.
IV. THIS CASE IS THE APPROPRIATE VEHICLE FOR RESOLVING THE QUESTION
PRESENTED
This case is in the perfect posture for the Court to decide whether Title VII’s prohibitions on discrimination “because of . . . sex” encompass discrimination based on sexual orientation. In answering this question in the affirmative, the Second Circuit not only reversed the District Court’s holding;

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it overruled decades of established precedent simply to accommodate new legal theories on a hot-button issue. In the course of doing so, the Appellate Court joined the Seventh Circuit in establishing and fostering a divergent minority view that is irreconcilable with the majority.
This case is also uniquely positioned as compared to others addressing this issue. In fact, other cases to reach this level of judicial review have done in the absence of the employer’s involvement. See Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc); Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017), cert denied, 138 S. Ct. 557, 199 L Ed 2d 446 (2017).
It is inevitable that this issue will come before the Court time and time again. We respectfully posit that it is time the Court address the growing uncertainty and answer this question to ensure consistent adjudication moving forward.

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CONCLUSION
For the reasons set forth above, a writ of certiorari should be granted.
Respectfully submitted,
SAUL D. ZABELL Counsel of Record
RYAN T. BIESENBACH ZABELL & ASSOCIATES, P.C. 1 Corporate Drive, Suite 103 Bohemia, New York 11716 T: (631) 589-7242 F: (631) 563-7475 SZabell@laborlawsny.com
Counsel for Petitioners Altitude Express, Inc., formerly doing business as Skydive Long Island, and Ray Maynard
May 29, 2018

 
 No. 17-1623
IN THE
ALTITUDE EXPRESS, INC., AND RAY MAYNARD, Petitioners,
v.
MELISSA ZARDA AND WILLIAM MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
DONALD ZARDA, Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals
for the Second Circuit
BRIEF IN OPPOSITION
Gregory Antollino Counsel of Record
ANTOLLINO PLLC 275 Seventh Avenue Suite 705 New York, NY 10001 (212) 334-7397 Gregory10011@icloud.com

QUESTION PRESENTED
Should certiorari be granted on a petition involving construction of Title VII of the Civil Rights Act of 1964 when one petitioner faces no liability under that statute and the other is a defunct corporation whose only known assets have been acquired by a successor that is not seeking review?

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PARTIES TO THE PROCEEDING
Petitioners, defendants below, are Altitude Express, Inc., a dissolved New York corporation, and Ray Maynard.
Respondents, plaintiffs below, are Melissa Zarda and William Allen Moore, Jr., co-independent executors of the Estate of Donald Zarda, duly appointed by the Dallas County Probate Court and substituted as plaintiffs after Donald Zarda’s death.

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TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i PARTIES TO THE PROCEEDING ............................ii TABLE OF AUTHORITIES ........................................ v BRIEF IN OPPOSITION............................................. 1 STATEMENT OF THE CASE..................................... 2 REASONS FOR DENYING THE PETITION .......... 11 I. This case is the wrong vehicle for resolving
whether discrimination on the basis of an individual’s sexual orientation falls within Title VII’s prohibition on “sex” discrimination in employment ..................................................... 12 II. Any conflict among the circuits provides no reason to grant review now................................. 17 III. The Second Circuit’s decision is correct ............. 19 CONCLUSION .......................................................... 27 APPENDIX Appendix A, Letter of attorney Gregory Antollino to U.S. District Court Judge Joseph Bianco, dated April 11, 2018 ............................................ 1a Appendix B, Skydive Long Island website post, circa February 27, 2018, announcing its support of the district court’s ruling................... 4a Appendix C, Letter of attorney Saul D. Zabell to U.S. District Court Judge Joseph Bianco, dated April 12, 2018 ............................................ 6a

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Appendix D, Letter of attorney Greg Antollino to U.S. District Court Judge Joseph Bianco, dated April 12, 2018 ............................................ 8a
Appendix E, Transcript of May 21, 2018 proceedings in Melissa Zarda v. Altitude Express, U.S. District Court case no. 10-CV0334, before Hon. Joseph Bianco ...................... 10a

v
TABLE OF AUTHORITIES
Cases
Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015)........................................................... 4, 5, 6, 24
Bostock v. Clayton County, Georgia, No. 171618 (pet. for cert. filed May 25, 2018) ................. 18
Bostock v. Clayton Cty. Bd. of Commissioners, 894 F.3d 1335 (11th Cir. 2018) ............................. 18
City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978) ......................................... 19, 20
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), opinion reinstated on reh’g en banc sub nom. Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999)................................................. 23
Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) ..................................................................... 13
EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir. 1974) ............................... 15
EEOC v. Northern Star Hospitality, Inc., 777 F.3d 898 (7th Cir. 2015) .................................. 13, 15
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) ......................... 18
EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016 ................................ 18
Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir.), cert denied, 138 S. Ct. 557 (2017) ............................................................... 14, 18
Franks v. City of Santa Ana, 2018 WL 2425395 (9th Cir. May 30, 2018) ......................................... 18
Harris v. Forklift Sys., 510 U.S. 17 (1993) ............... 19

vi
Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc) ................ passim
Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008) ......................................................... 20, 23
Howard Johnson Co., Inc. v. Detroit Local Joint Exec. Bd., Hotel & Restaurant Employees & Bartenders Int’l Union, AFLCIO, 417 U.S. 249 (1974)....................................... 15
Johnson v. Transp. Agency, 480 U.S. 616 (1987) ..................................................................... 26
Lewis v. City of Chicago, 560 U.S. 205 (2010) .......... 25
Loving v. Virginia, 388 U.S. 1 (1967) ........................ 20
Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018) ............................................................ 17
Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trustees, 709 F. App’x 243 (5th Cir. 2017)....................................................................... 12
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018) ................ 16
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) .................................................................. 8
Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) ........................................... 26
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) ............................... 22
Nieves v. Bartlett, No. 17-1174 (certiorari granted June 28, 2018).......................................... 17
Nischan v. Stratosphere Quality, LLC, 865 F.3d 922 (7th Cir. 2017) ........................................ 12
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)...... 17, 19

vii
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ........................... 8, 17, 19, 24, 25
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) ......................... 20, 23
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) .............................................................. 26
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ......................................... 25, 26
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam) ......................................... 20
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..................................................... 7, 17, 21, 23
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) ..................................................................... 22
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)......................................................................... 5
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971)............................................... 20
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988 (6th Cir. 1999)........................................................ 23
United States Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994)............................. 14
United States v. Virginia, 518 U.S. 515 (1996) ..................................................................... 22
United States v. Wise, 370 U.S. 405 (1962) ........ 25, 26
Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)......................................................... 5
Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144 (8th Cir. 2008)............................................... 12

viii
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ................................................................... 22
Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) ..................................................... 26-27
Wrighten v. Glowski, 232 F.3d 119 (2d Cir. 2000) .................................................................... 12
Statutes 42 U.S.C. § 1983......................................................... 17 42 U.S.C. § 2000e-2...................................... 1, 4, 12, 19 N.Y. Bus. Corp. L. § 1006 .................................... 10, 13 N.Y. Exec. L. § 296.1.................................................... 4

BRIEF IN OPPOSITION
Donald Zarda, a gay man, was employed as a skydiving instructor by Altitude Express, Inc. (“Altitude”), a New York corporation. He alleged that Altitude fired him because he “failed to conform to male sex stereotypes by referring to his sexual orientation.” Pet. App. 8. Among other things, he claimed that his termination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), which prohibits covered employers like Altitude from “discharg[ing] any individual . . . because of such individual’s . . . sex.” The court of appeals held en banc that this claim is “cognizable under Title VII,” Pet. App. 61, and remanded the case for trial.1
As petitioners acknowledge, Altitude Express, Inc., no longer exists. Pet. ii. The corporation “was dissolved.” BIO App. 14a.2
Despite respondents’ best efforts to obtain discovery, they have not yet been able to determine who faces successor liability for Zarda’s Title VII claim against Altitude. See BIO App. 2a-3a; 8a-9a; 13a.3 If it
1 Zarda died after the district court had granted summary judgment on his Title VII claim, but prior to trial on his state-law claim. The executors of his estate were substituted as plaintiffs, Pet. App. 8 n.1, and are respondents here. For ease of exposition, they will be referred to interchangeably as “Zarda” and “respondents.”
2 “BIO App.” refers to the Appendix to this Brief in Opposition.
3 On remand before the district court after the en banc ruling, respondents sought discovery on the issue of successor liability. The district court denied the request because of petitioners’ statement that they intended to seek Supreme Court review. See BIO App. 14a.

2
is Skydive Long Island, Inc., a corporation that purchased some (if not all) of Altitude’s assets, that corporation has announced that it “fully support[s]” the Second Circuit’s decision in this case. Id. 4a.
Under the circumstances, it is unclear whether either petitioner now before this Court is an appropriate party to seek this Court’s review. This Court should therefore deny the petition.
STATEMENT OF THE CASE
1. Petitioner Altitude Express, Inc., a New York corporation, operated a business called Skydive Long Island that provided “tandem skydives” to customers. In a tandem skydive, the customer is “strapped hip-tohip and shoulder-to-shoulder” to an instructor who is responsible for ensuring the customer’s safety. Pet. App. 11. Petitioner Ray Maynard owned Altitude Express. Id. at 143. Donald Zarda worked as an instructor for Altitude.4
“In an environment where close physical proximity was common, Zarda’s co-workers routinely referenced sexual orientation or made sexual jokes around clients, and Zarda sometimes told female clients about his sexual orientation to assuage any concern they might have about being strapped to a man for a tandem skydive.” Pet. App. 11; see also id. at 180-81 (providing examples of these comments).
In the summer of 2010, Altitude sold a pair of tandem skydives to a young couple, Rosanna Orellana
4 Because of the procedural posture of this case—the district court held that the Title VII claim was foreclosed as a matter of law—petitioners’ attempt to shade the facts in their favor regarding plaintiff’s termination, Pet. 2-3, are misplaced.

3
and David Kengle. Pet. App. 11, 144-45. Zarda was Orellana’s instructor and disclosed his sexual orientation to her as they prepared to dive. Zarda and Orellana successfully completed the jump. Id. at 12.
Several days later, Kengle contacted Altitude Express. He claimed that Orellana had told him that Zarda had touched her inappropriately while strapped together; he accused Zarda of discussing his sexual orientation with Orellana as a pretext for his behavior. Pet. App. 12. Zarda denied that he had engaged in any misconduct, but Altitude Express fired him shortly thereafter. Id. When Zarda sought unemployment benefits, Altitude Express responded to the New York Department of Labor only that Zarda had been discharged “for shar[ing] inappropriate information with [customers] regarding his personal life.” C.A. Jt. App. 626. It did not assert any physical misconduct on Zarda’s part. See also Pet. App. 167.
2. Zarda filed a timely charge of sex discrimination with the Equal Employment Opportunity Commission. See Pet. App. 177-81. In that charge, he asserted that “in addition to being discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.” Id. at 178. In particular, Zarda charged that “[a]ll of the men at Altitude made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.” Id. at 180.
3. After receiving a right-to-sue letter, Zarda filed suit in the United States District Court for the Eastern District of New York. As is relevant here, he alleged

4
that his termination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), which prohibits an employer from discharging any individual “because of such individual’s . . . sex.” He also alleged that his termination violated N.Y. Exec. L. § 296.1(a), which forbids employers from discharging an individual on a number of bases, including an individual’s “sexual orientation” or “sex.”
The district court denied Altitude’s motion for summary judgment on Zarda’s state-law claim, Pet. App. 167, finding enough evidence in the record from which a jury could conclude that Altitude fired Zarda because of his sexual orientation, see id. at 165-68. But it granted Altitude’s motion for summary judgment on Zarda’s Title VII claim, rejecting his claim that he had been subject to prohibited sex stereotyping. See id. at 161.
Before Zarda’s case could go to trial, the EEOC issued a decision in Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015). Baldwin sets forth the EEOC’s position that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Id. at *5. In addition, the EEOC explained that “[s]exual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.” Id. at 6. Finally, the EEOC declared that “[s]exual orientation discrimination also is sex

5
discrimination because it necessarily involves discrimination based on gender stereotypes” about appropriate behavior for men and women. Id. at 7.
Immediately upon learning of Baldwin, Zarda moved to reopen the district court’s grant of summary judgment on his Title VII claim. The district court denied the motion, holding that the Second Circuit’s decision in Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), “was contrary to the EEOC’s decision, and that it barred Zarda from recovering on a theory that discrimination based on sexual orientation violated Title VII.” Pet. App. 147 (description provided by the court of appeals).
At trial on Zarda’s state-law claim, the jury returned a verdict for Altitude.
4. On appeal, a panel of the Second Circuit agreed with respondents that Zarda’s Title VII claim was not barred by the jury verdict in Altitude’s favor on the state-law claim. The district court’s instruction to the jury on causation had required respondents to prove that Zarda’s sexual orientation was the but-for cause for his termination. Pet. App. 148. But under Title VII, he would have needed to show only that “discriminat[ion] was ‘one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.’” Id. (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013)).
Nonetheless, the panel held that Zarda’s Title VII claim was barred by Simonton, which could “only be overturned by the entire Court sitting in banc.” Pet. App. 149.

6
5. The court of appeals granted respondent’s petition for rehearing en banc and directed the parties to address the question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?” Pet. App. 157. After oral argument, the court ruled 10-3 that it does.
Chief Judge Katzman’s majority opinion explained that “sexual orientation discrimination is properly understood as ‘a subset of actions taken on the basis of sex.” Pet. App. 19-20. Aligning itself with the EEOC’s decision in Baldwin, as well as a recent en banc decision from the Seventh Circuit’s, Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), it identified three bases for this conclusion.
First, sexual orientation is “[l]ogically” a function of an individual’s sex. Pet. App. 21. To “identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to whom he or she is attracted.” Id. An individual’s sex is the but-for cause of discrimination on the basis of sexual orientation: for example, “a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.” Id. at 34.5
5 In so holding, and as discussed below, the Second Circuit relied upon Seventh Circuit Judge Joel Flaum’s concurrence in Hively, which focused solely on the text. 853 F.3d at 357-59.

7
The Second Circuit identified “yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination” in this Court’s sex stereotyping jurisprudence, Pet. App. 35. Quoting from Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), the Second Circuit “conclude[d] that when, for example, ‘an employer . . . acts on the basis of a belief that [men] cannot be [attracted to men], or that [they] must not be,’ but takes no such action against women who are attracted to men, the employer ‘has acted on the basis of gender.’” Pet. App. 37 (interpolations and ellipses supplied by the Second Circuit). “[S]exual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination.” Id. at 40.
Finally, the Second Circuit concluded that discrimination on the basis of sexual orientation constitutes forbidden “associational discrimination.” The court described the widespread consensus among the courts of appeals that Title VII forbids associational discrimination—that is, discriminating against an individual because of the relationship between the individual’s protected characteristic and the protected characteristics of others with whom the individual associates. See Pet. App. 45. The court saw “no principled basis for recognizing a violation of Title VII for associational discrimination based on race but not on sex.” Id. at 53. The general “notion that employees should not be discriminated against because of their association with persons of a particular sex is not controversial.” Id. at 47 (internal quotation marks omitted). Just as an employer could not fire a female employee because of her close

8
relationships with men, so too, an employer cannot fire a male employee for having such relationships.
Relying on this Court’s decisions recognizing both that sexual harassment and same-sex sexual harassment are actionable under Title VII, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the Second Circuit declared it irrelevant that the Congress that enacted the Civil Rights Act of 1964 did not foresee this application of Title VII’s prohibition of sex discrimination. The clear language trumped any contrary arguments from legislative intent. See id. at 23-27. Nor did “subsequent legislative developments,” Pet. App. 53, undermine treating sexual orientation discrimination as a subset of sex discrimination.
Judges Hall, Chin, Carney, and Droney, joined Chief Judge Katzmann’s opinion in full. Judge Pooler joined all of the opinion except its discussion of but-for causation.
Judges Cabranes concurred in the judgment, noting in three paragraphs that this question is “a straightforward case of statutory construction.” Pet. App. 68. “Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII. That should be the end of the analysis” Id. Judge Lohier, noted that one could end with Judge Cabranes’ concurrence, and endorsed Chief Judge Katzmann’s “textualist’s approach.” Pet. App. 71. He also agreed with respondents that the “associational discrimination rationale” might properly be “appl[ied] to Zarda’s particular case.” Id.

9
Two other concurring judges—Judges Jacobs and Sack—each joined Chief Judge Katzmann’s explanation that sexual orientation discrimination constitutes forbidden associational discrimination on the basis of sex. See Pet. App. 62-65 (Judge Jacobs); id. at 69 (Judge Sack). Judge Jacob was “unconvinced” with the sex-stereotyping reasoning, id. at 62, while Judge Sack thought it unnecessary to reach it, viewing it as wiser to “stop” with the “simpler and less fraught theory of associational discrimination.” Id. at 70.
Judges Lynch, Livingston, and Raggi each dissented.
6. Zarda’s case was remanded for further proceedings before the district court on the Title VII claim. Respondents learned by happenstance, after the en banc decision, that Altitude Express had been dissolved. BIO App. 14a. They sought to discover who has “assume[d] liability for Altitude Express’ liabilities.” Id. at 2a. That information, they told the court, was relevant to their decisions about how to proceed. In particular, respondents sought information about whether Skydive Long Island, Inc. (“SDLI”), which had purchased naming rights from the now-dissolved Altitude, id. at 4a, had also assumed its potential liability to respondents, or whether Maynard, when he sold the naming rights, had contractually agreed to successor liability. See id. at 2a, 8a.
Counsel for petitioners responded, first, that “there is no active matter currently pending [involving] Raymond Maynard.” BIO App. 6a. As for Altitude Express, counsel argued that discovery should not be reopened. Id. at 7a. Counsel declined to

10
provide the documents reflecting the sale of Altitude’s assets.
At a hearing before the district court, counsel for petitioners did not dispute respondents’ assertion that Maynard faced no direct liability under Title VII, although he might be contractually liable to Altitude Express or some other party for any liability which that party faced, BIO App. 12a. Counsel for petitioners did announce an intention to seek review in this Court on behalf of Altitude Express. See id. at 12a, 14a.
In response to the request for discovery because it was unclear whether Altitude as a dissolved corporation was still an appropriate party to the lawsuit, see BIO App. 12a-14a, the district court replied that “I don’t think it makes any sense to address that right now while the petition is pending. If in fact the Supreme Court doesn’t want to hear the case because the company is dissolved, then that’s up to them I guess.” Id. at 14a. The district court then issued a brief docket entry stating in its entirety that “With respect to the issue discussed at today’s conference, the Court notes that New York Business Corporation Law Section 1006 provides that a dissolved corporation may participate in all court proceedings against it.” Zarda v. Altitude Express, Inc. et al., No. 2:10-cv-04334 (E.D.N.Y. May 21, 2018).6
6 N.Y. Bus. Corp. L. § 1006 provides, in pertinent part that:
(a) A dissolved corporation, its directors, officers and shareholders may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place, except as otherwise provided in this chapter or by court

11
REASONS FOR DENYING THE PETITION
Petitioners are unequivocally wrong in claiming that “[t]his case is in the perfect posture for the Court to decide whether Title VII’s prohibitions on discrimination ‘because of . . . sex’ encompass discrimination based on sexual orientation.” Pet. 30. To the contrary, this case is a distinctively bad vehicle for answering the question presented. One of the two petitioners—Ray Maynard—was not Zarda’s “employer” for purposes of Title VII liability. And it is unclear whether the other—the now-dissolved Altitude Express, Inc.—remains liable or whether some successor, who has not sought review from this Court, is now responsible for defending against Zarda’s claims. Moreover, respondents’ claim is atypical in ways that militate against review. Petitioners themselves acknowledge that “[i]t is inevitable that this issue will come before the Court” again. Id. at 31. If this Court decides it is necessary to resolve the question presented, it should await an appropriate vehicle and deny certiorari here.
order. In particular, and without limiting the generality of the foregoing:
. . . .
(4) The corporation may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it.
(b) The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution . . . .

12
I. This case is the wrong vehicle for resolving whether discrimination on the basis of an individual’s sexual orientation falls within Title VII’s prohibition on “sex” discrimination in employment.
There are three reasons why this case – notwithstanding the Second Circuit’s thorough, persuasive analysis – is a bad vehicle for resolving the question presented.
1. This Court has no jurisdiction to hear a petition on behalf of petitioner Maynard. Since the Second Circuit’s holding does not affect his legal rights, he lacks standing to seek review in this Court.
Title VII authorizes an aggrieved individual to bring suit only against his “employer,” an “employment agency,” or a “labor organization.” 42 U.S.C. § 2000e-2(a), (b), (c). Maynard is none of these. Rather, respondents have alleged that he was the chief executive officer and sole shareholder of the corporation—Altitude Express, Inc.—that employed Zarda. It is black letter law that Title VII “does not provide for an action against an individual supervisor.” Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1147 (8th Cir. 2008); see also, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 930 (7th Cir. 2017) (“there is no individual liability under Title VII”); Malcolm v. Vicksburg Warren Sch. Dist. Bd. of Trustees, 709 F. App’x 243, 247 (5th Cir. 2017) (“Individuals are not liable under Title VII in either their individual or official capacities”).
“[I]t is fundamental corporation and agency law— indeed, it can be said to be the whole purpose of

13
corporation and agency law—that the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation’s contracts.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 477 (2006). Thus, the fact that Maynard may have owned and managed Altitude Express, Inc., does not expose him to direct liability under Title VII. He therefore cannot seek review of a decision permitting respondents to sue the corporation.
Indeed, Maynard himself took that position only a few months ago, writing to the district court that, with Zarda’s non-Title VII claims having been resolved, “there is no active matter currently pending before Raymond Maynard.” BIO App. 6a. Because he faces no liability, he is not a proper party to this proceeding. His mere name on the petition, given both sides’ agreement on this point, should instantly give pause: An individual with no potential legal obligation to respondents asks for space on this Court’s limited docket? Behind this could lie either a riddle or a ruse.
2. The standing of the second petitioner, Altitude Express, Inc., to seek further review is questionable at best. To be sure, as a matter of state law, dissolved corporations may remain subject to liability. See N.Y. Bus. L. § 1006(a)(4), (b). But even assuming that state law is controlling for liability under a federal statute,7 respondents may be entitled instead to substitute as the proper defendant an ongoing (and solvent) successor. In that circumstance, Altitude would also no longer face any direct consequences from Zarda’s
7 But see EEOC v. Northern Star Hospitality, Inc., 777 F.3d 898, 901-03 (7th Cir. 2015) (addressing the issue of successor liability under Title VII as a matter of federal common law).

14
Title VII claim, and thus would also lack standing to invoke this Court’s jurisdiction.8
Respondents learned – again, after the decision from which review is sought – that Skydive Long Island, Inc. (SDLI) purchased some (if not all) of the assets of Altitude before Altitude dissolved. BIO App. 14a. But despite their best efforts, respondents have been unable to determine whether SDLI took on Altitude’s liabilities, in whole or in part. See supra pp. 9-10.
SDLI is not a party before this Court, or in the courts below. BIO App. 4a. And to the extent that SDLI is Altitude’s successor, it has issued a public statement, posted on its website after the Second Circuit’s en banc decision, announcing that it “fully support[s] this ruling.” Id. While it remains possible, should respondents succeed in substituting it as a party defendant, that SDLI might decide to dispute whether in fact Altitude discharged Zarda because of his sexual orientation, SDLI has repudiated the
8 The Court might also wonder whether a dissolved corporation, with at best an uncertain concrete interest in the outcome of the litigation, is an appropriate party to litigate the question presented. Cf. Pet. 31 (pointing to the lack of employer “involvement” as a reason for the denial of certiorari on this question in Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir.), cert denied, 138 S. Ct. 557 (2017)).
That being said, there is no question of mootness. Respondents have a live claim. And because they are responsible for the corporate dissolution, neither Maynard nor Altitude can obtain vacatur of the decision below. See United States Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994).

15
position taken in the petition that Title VII does not cover sexual orientation discrimination.
In any event, because the issue goes to standing and thus this Court’s jurisdiction, the Court would have to address the question of successor liability and whether Altitude is still an appropriate defendant before it could reach the merits of any Title VII issue raised in the petition. The question of successor liability is fact-bound and turns on considerations that are not well developed in the existing record. As this Court observed in Howard Johnson Co., Inc. v. Detroit Local Joint Exec. Bd., Hotel & Restaurant Employees & Bartenders Int’l Union, AFL-CIO, 417 U.S. 249 (1974), determining successor liability “requires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue.” Id. at 262 n.9. Thus, “[t]here is, and can be, no single definition of ‘successor’ which is applicable in every legal context.” Id.
Under Title VII, courts decide successor liability as a matter of federal common law under a multi-part test that turns on factual issues such as whether the successor company was on notice of the suit and whether the predecessor company could provide adequate relief to the plaintiff. See, e.g., EEOC v. Northern Star Hospitality, Inc., 777 F.3d 898, 902 (7th Cir. 2015) (describing that court’s “five-factor test for successor liability in the federal employment-law context”); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974) (stating that “[c]ourts that have considered the successorship

16
question” find “a multiplicity of factors to be relevant” and identifying nine relevant factors).
In this case, as respondents have already explained, it is not even precisely clear as to what the successorship facts are. Under these circumstances, it makes no sense for the Court to grant review.
3. The factual atypicality of Zarda’s case provides yet another reason to deny review. In the mine run of sexual orientation discrimination claims, a plaintiff asserts that he or she suffered an adverse employment action when the employer learned of the plaintiff’s sexual orientation or because the employer disapproved of the plaintiff’s sexual orientation.
Zarda’s case is different. He alleged he was fired not simply because he was gay, but because he revealed his sexual orientation to a customer of the firm. And he did so in the context of an unusual job— one in which he was intimately “strapped hip-to-hip and shoulder-to-shoulder” to that customer. Pet. App. 11.
In the encounter that led to Zarda’s termination, he was strapped to a woman. But for his sex, and hers, he would not have revealed his sexual orientation. Thus, the facts of Zarda’s case depend on sex in a way that is distinctive to his job function. That means that the Court could resolve Zarda’s case without reaching the broad question on which petitioners seek review: whether discrimination on the basis of sexual orientation is necessarily discrimination “because of . . . sex.”
Last Term provides two powerful illustrations of how this Court can find itself unable to resolve fully the question presented when it grants review on

17
idiosyncratic facts. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018), this Court did not reach the question presented— whether the Free Speech or Free Exercise Clauses of the First Amendment provide a business that is open to the public with a defense to a claim that it engaged in discriminatory conduct prohibited by a state law. Statements made during an administrative hearing compromised “neutral and respectful consideration” of the petitioners’ claims. Id. at 1729. Thus, the Court issued an opinion that left open the question of general applicability. And in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), the petitioner’s claim was sufficiently “far afield from the typical retaliatory arrest claim,” id. at 1954, that the Court has apparently found it necessary to grant yet another case to decide whether probable cause defeats a First Amendment retaliatory arrest claim under 42 U.S.C. § 1983. See Nieves v. Bartlett, No. 17-1174 (certiorari granted June 28, 2018). Granting review here could well result in the same kind of inability to provide guidance on the general construction of Title VII’s prohibition on sex discrimination.
Particularly given petitioners’ acknowledgment that it is “inevitable” that this Court will have other chances to address the question presented, Pet. 31, the Court should take a pass on this deeply flawed vehicle.
II. Any conflict among the circuits provides no reason to grant review now.
Petitioner points to the recent en banc decisions by the Second Circuit here and the Seventh Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), as reasons for this Court to grant

18
review. Pet. 11-12. In reality, these decisions provide a reason for this Court to let the issue percolate. Each of the en banc decisions “overrule[d] earlier decisions” in order “to bring our law into conformity with the Supreme Court’s teachings” in cases like Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Hively, 853 F.3d at 343.
Other courts are grappling with the same question that the Second and Seventh Circuits confronted, and are coming to similar conclusions. See, e.g., EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (citing Zarda in deciding a sex stereotyping decision for plaintiff); Franks v. City of Santa Ana, 2018 WL 2425395 (9th Cir. May 30, 2018) (remanding to allow a sexual orientation discrimination claim under Title VII); EEOC v. Scott Med. Health Ctr., P.C., 217 F. Supp. 3d 834, 841 (W.D. Pa. 2016) (“There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”). This Court’s consideration of the question presented will benefit from watching how the issue plays out in a variety of factual circumstances.
Indeed, even the Eleventh Circuit, which recently declined to revisit its precedent en banc, see Bostock v. Clayton Cty. Bd. of Commissioners, 894 F.3d 1335, 1335 (11th Cir. 2018),9 is not wholly in conflict with
9 The plaintiff in that case did not seek rehearing en banc, but instead filed a petition seeking review in this Court. Bostock v. Clayton County, Georgia, No. 17-1618 (filed May 25, 2018). Apparently, the Eleventh Circuit did not address the question

19
the Second and Seventh Circuits. In Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir.), cert denied, 138 S. Ct. 557 (2017), although the court adhered to its precedent holding that sexual orientation claims are not categorically actionable under Title VII, it also recognized that discrimination “because of gendernonconformity [can be] sex discrimination,” and remanded a lesbian plaintiff’s claims for further proceedings. Id. at 1254-55.
In short, there is analytic and doctrinal movement occurring among the lower courts. This Court should not short-circuit that process.
III. The Second Circuit’s decision is correct.
Title VII of the Civil Rights Act of 1964 enacted a “broad rule of workplace equality.” Harris v. Forklift Sys., 510 U.S. 17, 22 (1993). In prohibiting employment discrimination “because of” an individual’s “sex,” 42 U.S.C. § 2000e-2(a)(1), Title VII reaches forms of gender discrimination beyond those that animated Congress “when it enacted Title VII,” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). And “recogniz[ing] that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged,” this Court has applied concepts of nondiscrimination to
whether it should revisit the construction of Title VII en banc until after the petition was filed. See Bostock, 894 F.3d at 1338 n.8. Without taking a position on Bostock, respondents suggest that a post-petition sua sponte request for rehearing en banc with a dissent shows that lower courts are engaging this question. That is the way it should be. There is no need to grant this defective petition.

20
lesbian, gay, and bisexual individuals. Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015).
Title VII’s prohibition on discrimination “because of” an individual’s “sex” encompasses three related concepts. First, Title VII forbids “treatment of a person in a manner which but for that person’s sex would be different.” City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (citation omitted). Second, Title VII forbids adverse employment actions based on “sex stereotypes.” Manhart, 435 U.S. at 707 n.13 (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971)). Third, Title VII prohibits discrimination against an employee based on the interaction of a protected aspect of the employee’s identity with the identity of a person with whom the employee associates. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986); cf. Loving v. Virginia, 388 U.S. 1, 11 (1967) (punishing a person for marrying someone of a different race constitutes race discrimination).
Discrimination against individuals because of their sexual orientation runs afoul of all three prohibitions.
1. As Judge Lohier suitably noted, “[t]ime and time again, the Supreme Court has told us that the cart of legislative history is pulled by the plain text, not the other way around. The text here pulls in one direction, namely, that sex includes sexual orientation.” Pet. App. 72. Discriminating against lesbian, gay, or bisexual employees inherently involves treating them adversely based on their sex. For more than forty years, it has been settled that Title VII forbids an employer from having “one hiring

21
policy for women and another for men.” Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam). One way to articulate this “simple test” is that it forbids any “treatment of a person in a manner which but for that person’s sex would be different.” Manhart, 435 U.S. at 711 (citation omitted).
It is undemanding to appreciate how discrimination against a gay man like Donald Zarda fails this but-for test. If an employer would not fire women who are attracted to men, then it cannot fire men who are attracted to men. As Chief Judge Wood explained in Hively, “[i]t would require considerable calisthenics to remove the ‘sex’ from “sexual orientation.” Hively v. Ivy Tech Community College, 853 F.3d 339, 350 (7th Cir. 2017) (en banc). That is why, after all, Judge Cabranes thought this entire question could be resolved in three paragraphs. Pet. App. 68.
2. Discrimination based on sexual orientation also rests on impermissible sex stereotyping. This Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), makes clear that Title VII does not permit employers to “evaluate employees by assuming or insisting that they match[] the stereotype associated with their group.” Id. at 251 (plurality opinion). Such assumptions and demands, when they result in adverse employment consequences for workers who do not fit the stereotypes, constitute discrimination because of sex.
Discrimination on the basis of sexual orientation is rooted in stereotypes about what it means to be a man or a woman and about how men and women should conduct their lives. It rests on the idea that men should not be attracted to men. Aligning itself

22
with the Seventh Circuit’s statement in Hively that same-sex orientation “represents the ultimate case of failure to conform” to gender stereotypes, 853 F.3d at 346, see Pet. App. 38, the Second Circuit agreed “that stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.” Id. (internal quotation marks and citations omitted. As this Court recently explained, “[f]or close to a half century” it has been the law that “overbroad generalizations about the different talents, capacities, or preferences of males and females” constitute sex discrimination. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1692 (2017) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996), and citing Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)). Discrimination on the basis of sexual orientation suffers from exactly those generalizations.
3. Discrimination on the basis of sexual orientation constitutes “associational” discrimination forbidden by Title VII. In Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), this Court held that an employment practice premised on the sex of an employee’s spouse can constitute sex discrimination. The practice at issue there was the denial of spousal pregnancy benefits in an employer’s healthcare plan. Title VII had, years earlier, been amended to provide that discrimination on the basis of pregnancy is discrimination “because of sex.” As such, at the time “the sex of the spouse [was] always the opposite of the sex of the employee,” and male employees were subject to discrimination because they had female spouses. Id. at 684.
In a similar vein, every circuit to have addressed the question has held that discrimination against

23
employees because they have interracial relationships constitutes a form of discrimination “because of . . . race” prohibited by Title VII. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008); DeffenbaughWilliams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), opinion reinstated on reh’g en banc sub nom. Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999); Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986). “The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Holcomb, 521 F.3d at 139. Several circuits and numerous district courts have found associational discrimination on the basis of other protected actionable characteristics as well. See Pet. App. 46 n.25 (citing cases).
The logic of these cases carries to sex discrimination, and therefore sexual orientation discrimination: treating an employee differently because the employer disapproves of same-sex relationships depends on the employee’s sex. Again, discrimination under Title VII need merely be “motivated by” consideration of an employee’s protected class, as Judge Flaum noted in his succinct concurrence in Hively, 853 F.3d at 358, which Zarda adopted, Pet. App. 21, 23. Further, Title VII “treats each of the enumerated categories exactly the same.” Price Waterhouse, 490 U.S. at 243 n.9 (plurality opinion). Thus, “the prohibition on associational discrimination applies with equal force to all the

24
classes protected by Title VII, including sex.” Pet. App. 46. As the Second Circuit explained, “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him.’” Pet. App. 47 (quoting Baldwin v. Foxx, 2015 WL 4397641 at *6 (EEOC July 15, 2015).
4. Neither the absence of the explicit phrase “sexual orientation” in Title VII nor congressional inaction after enactment of Title VII can provide a basis for excluding sexual orientation discrimination from the prohibition on discrimination “because of . . . sex.” Title VII does not remove lesbians, gay men and bisexual people from its categorical protection against sex discrimination.
Judge Lynch was mistaken to use the proposition that “[d]iscrimination against gay women and men. . . was not on the table for public debate” in 1964 as a basis for denying them protection under Title VII. Pet. App. 79 (Lynch, J., dissenting). It is regrettably true that in 1964 gay men and lesbians, if they had any place at the table, held their secrets under the tablecloth. But “we are governed” by “the provisions of our laws rather than the principal concerns of our legislators.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Regardless of the personal views of members of Congress in 1964, the statutory text enacted into law provides gay men and lesbians with a seat at the table by affording them the same protections against discrimination “on the basis of sex” as heterosexual men and women. That was true of the

25
language of Title VII as originally enacted. And it is even clearer in light of the 1991 amendments to Title VII, which impose liability if sex was even a “motivating factor” in an adverse employment action.
This Court’s decision in Oncale shows the right way to interpret the statute. In 1964, it was equally implausible to think that any member of Congress was concerned with prohibiting male-on-male sexual harassment. But as this Court explained, “statutory prohibitions often go beyond the principal evil” targeted by the Congress that enacted them “to cover reasonably comparable evils.” 523 U.S. at 79. Discrimination against individuals on the basis of their sexual orientation, like the same-sex sexual harassment at issue in Oncale, “meets the statutory requirements” for sex discrimination prohibited by Title VII, id. at 80. Courts cannot “rewrite the statute so that it covers only what [they] think is necessary to achieve what [they] think Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010). They must instead apply the statute as written.
Nor, as the Second Circuit explained, Pet. App. 56, can congressional inaction support excluding claims of discrimination on the basis of sexual orientation. As this Court has repeatedly cautioned, “subsequent legislative history” provides “a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns . . . a proposal that does not become law.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990). Given the multitude of reasons the various proposals to add “sexual orientation” to Title VII might not have been adopted, the congressional inaction over the years here has “no persuasive significance.” United States v. Wise, 370

26
U.S. 405, 411 (1962). It “is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval” of a particular statutory interpretation. Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989). “There are many reasons Congress might not act” in response to a decision even by this Court, “and most of them have nothing at all to do with Congress’ desire to preserve the decision.” Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2052 (2014). (Thomas, J., dissenting). Congress may be indifferent to the status quo, or unable to agree on how to alter it. Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting).
It is impossible to choose among the various inferences that a court should take “from [congressional] inaction.” LTV, 496 U.S. at 650. Silence and nothingness lack persuasive significance; a court may draw “several equally tenable inferences . . . from such inaction, including the inference that the existing legislation already [includes] the offered change.” Id. The lessons of LTV date back at least to the 1960’s. See id. (quoting United States v. Wise, 370 U.S. 405, 411 (1962). This Court has frequently cautioned against giving unenacted legislation such jurisprudential weight, and it certainly should not depart from that guidance to decide an issue of profound importance in such a backhanded manner. As this Court recently reiterated, “[w]hile every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world.” Wis. Cent. Ltd. v.

27 United States, 138 S. Ct. 2067, 2074 (2018) (emphasis in original).10
CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted, Gregory Antollino
Counsel of Record Antollino PLLC 275 Seventh Avenue Suite 705 New York, NY 10001 (212) 334-7397 Gregory10011@icloud.com
August 16, 2018
10 Indeed, as Chief Judge Katzmann pointed out in his analysis of the acquiescence theory—which presupposes a majority of Congress has accepted any particular judicial interpretation—“when the statute was amended in 1991, only three of the thirteen courts of appeals had considered whether Title VII prohibited sexual orientation discrimination.” Pet. App. 55.

APPENDIX

1a
APPENDIX A
Gregory Antollino Attorney at Law greg@antollino.com 275 Seventh Avenue Suite 705 New York New York 10001 Tel (212) 334-7397 Fax (212) 334-7399
April 11, 2018
Judge Joseph F. Bianco U.S. District Judge 100 Federal Plaza Central Islip, NY 11722
Dear Judge Bianco,
Hello again. I write with great humility. Winning the en banc is probably the greatest gift ever conferred on me in my career.
The week after I filed a request for a bill of reproduction costs with the Circuit, it was met with strong opposition from the defense in which Mr. Zabell also noted an intention to file a petition for certiorari.
Mr. Zabell and Skydive Long Island, Inc.1 have both publicly supported the legal conclusion of the en banc court – SDLI has on its website and Mr. Zabell has said to the press. We know, however, that in the prac-
1 SDLI, Inc. is the successor in interest to Altitude Express, which changed is location to Shirley New York before this case went to trial, then after the appeal was filed. SDLI distanced itself from Altitude Express on its website after the ruling (took the pages down), but some screenshots I took are attached. Altitude Express moved to Shirley, NY before trial – 2014 or 2015. Altitude Express dis-incorporated, and Skydive Long Island registered as a corporation in 2016.

2a
tice of Supreme Court litigation, there are lawyers who are dying to appear before the high court who are willing to take a case up for a losing party at no cost. I am speculating, but my suspicion is that where we are now.
The day after the costs petition (opposition and reply) was fully submitted, Mr. Zabell solicited from me a demand, suggesting there was little money to go around. I asked what SDLI’s liability for this debt could be – and have asked repeatedly – but Mr. Zabell has remained mum. I nevertheless made the demand and was told that (after 7+ years of litigation) it was out of range. I don’t know if the defense was willing to pay anything, but plaintiff deserves to know who is paying the bill. Is it just Ray Maynard or – as I suspect – did SDLI assume liability for Altitude Express’ liabilities. We deserve to know this information just as much as we deserve to know if there is were an insurance policy.
The mandate has issued and there is no stay. We are not asking for a trial date. What we ask for is simply the unredacted sales document that either disavows or assumes liability on Altitude Express. We will keep it confidential. You might also want to refer this to Magistrate Shields.
If our demand was too big, then perhaps we were wrongly assuming successor liability. This is an important question; I have taken cases to trial where there is no money to be taken and don’t intend to do so here. The most important question in discussing settlement – and this would be a question that we should explore before certiorari is granted or denied – is the question of successor liability. There is certainly a document that addresses this question in the sale of Altitude Express, Inc. to Skydive Long Island, Inc.

3a
This document is not publicly available. If Mr. Zabell believes we are asking for too much, we need the sales document to know in what area settlement should be explored. Mr. Zabell is trying to hide behind Mr. Maynard as the sole defendant, but he refuses to tender the sales document.
I ask that it be tendered now. I need to advise my clients what money might be obtained at a new trial if cert if denied (or we win on the merits). At a new trial, compensation would include seven years of attorney’s fees, punitive damages, a lower standard of proof (a single motivating factor under Title VII) plus the new rule of law announced in Vasquez v. Empress Ambulance Serv., 835 F.3d 267 (2d Cir. 2016).
The defense has announced an intention to petition for certiorari, but it also solicited a demand. We will not be pushing this case to trial until the certiorari petition is filed, but there is no reason there cannot be limited discovery on this minor issue. You don’t want to have this case on your docket for another seven years, and there is no reason not to use the time as we wait to explore this discrete issue.
Maybe a phone conference should be scheduled, and I am free until Friday except for Friday morning. Monday I must report for jury duty, but can confer during the lunch hour, 1-2:15.
Thank you for your consideration.
Sincerely,
/s/ Greg S. Antoffino
Gregory Antollino
Cc: Saul Zabell, Stephen Bergstein

4a APPENDIX B
Long Island NY – On February 26th, 2018, a federal appeals court in New York has ruled that employers cannot discriminate against workers based on their sexual orientation. We fully support this ruling. This ruling stems from the alleged 2010 dismissal of Donald Zarda from Altitude Express dba Skydive Long Island. The case of Mr. Zarda has been cited following the Department of Justice’s filing of court papers stating that a major federal civil rights law does not protect employees from discrimination based on sexual orientation. As a result of this report, our business has received several messages and phone calls expressing anger over the dismissal of Mr. Zarda. We feel it’s important to add clarity to this story. We have no affiliation to this case or the dismissal of Mr. Zarda. In 2016, the naming rights of Skydive Long Island was purchased from Altitude Express and has been under new ownership at an entirely different location (Altitude Express was located in Calverton, NY). We are located in Shirley, NY. Skydive Long Island and it’s ownership wish to be clear in our expression of support for gay rights and the LGBTQ community. Skydive Long Island’s owner, Brian Erler states, “We hire our staff based on qualifications related to aviation, skydiving, and hospitality. We do not discriminate based on sexual orientation, race, gender or religious affiliation. Personally, I * * *

5a
to convince your mom skydiving is safe, what the skydiving age is, and how to find a safe dropzone.
SKYDIVE LONG ISLAND SUPPORTS GAY RIGHTS AND THE LGBTQ COMMUNITY “We hire our staff based on qualifications related to skydiving and hospitality. We do not discriminate based on sexual orientation, race, gender or religious affiliation. Personally, I have family members who are gay and it has always been my position to be supportive of gay rights and the LGBTQ community. We are all the same and we do not tolerate discrimination.” -Owner, Brian Erler

6a
APPENDIX C
EMPLOYMENT COUNSELING, LITIGATION, LABOR & BENEFITS LAW
Counseling and Advising Clients Exclusively on Laws of the Workplace
Saul D. Zabell Email: SZabell@laborlawsny.com
Zabell & Associates, P.C. 1 Corporate Drive Suite 103 Bohemia, New York 11716 Tel. 631-589-7242 Fax. 631-563-7475 www.Laborlawsny.com
April 12, 2018
VIA ELECTRONIC CASE FILING
The Honorable Joseph F. Bianco United States District Court Judge United States District Court Eastern District of New York 00 Federal Plaza Central Islip, NY 11722
Re: Donald Zarda v. Altitude Express, Inc. and Raymond Maynard Case No.: 10-CV-04334 (JFB) (GRB)
Your Honor:
We are counsel for Defendants in the above referenced matter, though note that there is no active matter currently pending before Raymond Maynard. We write in response to Mr. Antolino’s April 11, 2018,

7a
missive seeking discovery to assist counsel in determining if a party and/or third party can satisfy a potential judgement. Initially, we must point out that it is factually inaccurate and no attempt has been made to meet and confer regarding the relief requested. Beyond that and putting all histrionics aside, Mr. Antollino’s letter seeks relief for which he has no legal basis to seek. Discovery has long been completed. Pleas for additional information to assist Plaintiff is determining the feasibility in litigation or references to settlement discussion should not be a basis for reopening discovery. In fact, Mr. Antollino’s references to settlement conversations in his application are inappropriate.
As a final basis for denying Mr. Antollino’s the entire application is premature as the time for Altitude Express to exhaust an appeal has yet to run.
We thank the Court for its consideration of this application.
Respectfully submitted,
ZABELL & ASSOCIATES, P.C.
/s/ Saul D. Zabell
Saul D. Zabell
cc: Gregory Antollino, Esq. (via Electronic Case Filing) Client

8a
APPENDIX D
Gregory Antollino Attorney at Law greg@antollino.com 275 Seventh Avenue Suite 705 New York New York 10001 Tel (212) 334-7397 Fax (212) 334-7399
April 12, 2018
Judge Joseph F. Bianco U.S. District Judge 100 Federal Plaza Central Islip, NY 11722
RE; Zarda v. Altitude Express, et al.
Dear Judge Bianco,
Mr. Zabell indicates there is no action pending against Mr. Maynard. This may or may not be true; there are limitations on individual liability under Title VII, but Maynard owned and transferred his major asset that is still a defendant. Further, we should use this hiatus for limited discovery. Mr. Zabell came to me to ask for a demand. The case could settle before certiorari is filed, as he apparently anticipated. The mandate is not stayed, nor has the defense moved for one (which would have to be made to the Circuit Justice). Moreover, if there is a certiorari petition, and the case returns to this court, we would certainly be entitled to discover the proper defendant, even if discovery is over. The transfer of Altitude Express, Inc. to Skydive Long Island, Inc. occurred after discovery was closed, thus there are new and extraordinary circumstances for plaintiff to seek discovery on this limited question, which is based on a multi-part test.

9a
EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974), cited by Battino v. Cornelia Fifth Ave., LLC, 861 F. Supp. 2d 392, 404 (S.D.N.Y. 2012) (Oetken, J.).
Plaintiff is not asking for a trial date, just to know who is the proper defendant. We are entitled to know this, especially in a civil rights case. See generally MacMillan. We should not be held in the dark just because the date for a petition for certiorari has not expired. Proportionally, we are not asking for much, and with no stay, the equities are on plaintiff’s side.
Sincerely,
/s/ Greg S. Antollino
Gregory Antollino
Cc: Saul Zabell, Stephen Bergstein

10a APPENDIX E
[1] UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
————
10-CV-0334 (JFB)
————
MELISSA ZARDA,
Plaintiff, v.
ALTITUDE EXPRESS, INC., et al.,
Defendants.
————
May 21, 2018 Central Islip, New York
————
TRANSCRIPT OF CIVIL CAUSE FOR CONFERENCE
BEFORE THE HONORABLE JOSEPH F. BIANCO UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff:
GREGORY S. ANTOLLINO, ESQ. 375 Seventh Avenue, Suite 705 New York, New York 10001
For the Defendants: SAUL D. ZABELL, ESQ. Zabell & Associates, PC 4875 Sunrise Highway, Suite 300 Bohemia, New York 11716

11a Court Transcriber:
MARY GRECO TypeWrite Word Processing Service 211 N. Milton Road Saratoga Springs, New York 12866
Proceedings recorded by electronic sound recording, transcript produced by transcription service
[2] (Proceedings began at 11:37 a.m.)
THE CLERK: Calling case 10-CV-4334, Zarda v. Altitude Express. Counsel, please state your appearance for the record.
MR. ANTOLLINO: Greg Antollino appearing by phone as arranged for plaintiff.
MR. ZABELL: Saul Zabell with the law firm of Zabell & Associates for the defendants.
THE COURT: Good morning. Can you hear Mr. Zabell okay?
MR. ANTOLLINO: Yes.
THE COURT: As you know, I scheduled this because I had received Mr. Antollino’s letter back in April asking for a conference to address the issues that he raised in that letter. I have seen the back and forth letters since the initial letter.
So the first issue I want to address is whether or not – has a sur petition been filed? I haven’t seen anything.
MR. ZABELL: It has not been filed yet. It is in the process of being filed. I believe we have another week.
THE COURT: The deadline of 90 days is next week?
MR. ZABELL: Correct. Yes.

12a
THE COURT: Okay.
MR. ZABELL: And it will be filed.
[3]
THE COURT: So Mr. Antollino, in light of that, I know you have two others suggestions in your letter. One was some type of settlement conference, the other one related to discovery on successor liability. But if Mr. Zabell is not nterested in trying to resolve the case while the sur petition is pending, I don’t know, what’s your position on that?
MR. ZABELL: We have reached a –
MR. ANTOLLINO: Well –
THE COURT: Hold on. Let me just ask Mr. Zabell. Go ahead.
MR. ZABELL: We have reached out to Mr. Antollino before we started drafting the sur petition. It did not seem that we were – that we had the same view, and therefore we started the sur petition. So at this point there’s no interest in pursuing settlement.
THE COURT: Go ahead, Mr. Antollino.
MR. ANTOLLINO: Well, if there’s no interest, there’s no interest. But there is the issue of the caption. There’s no Altitude Express anymore. So the caption has to be amended. And Mr. Maynard, as Mr. Zabell has pointed out, is not liable although he might be liable under some contractual basis and that would be addressed later. He can’t send the Supreme Court a case where there are no parties, the parties don’t exist.

13a
[4]
THE COURT: Well, I don’t think anything should be done while the sur petition is pending. You know, obviously there is a new company apparently from the letters. Whether or not that’s a successor company or not under the law obviously is something that would have to be determined. But I don’t think there’s any basis at this point simply to just amend the caption to put in a new defendant. The case is still being litigated. What would that accomplish at this point to have discovery on whether or not it is a successor company or not, and if so, to amend the caption? What would that accomplish?
MR. ANTOLLINO: Well, my strength in appeal is that – and I’ve done two or three sur petitions in my career, they want to know who’s the party. And if Altitude Express, Inc. is a defunct corporation and Maynard is not liable under Title 7, the Supreme Court is going to want to know that I think.
THE COURT: I don’t know whether they –
MR. ANTOLLINO: I usually don’t -- I don’t usually represent companies but I know that Rule 7.1, or whatever it is, corporate disclosure and whatnot, there’s no entity that can appeal. What’s the entity?
THE COURT: Well, I think, Mr. Zabell, correct me if I’m wrong, but you’re still representing Altitude Express, correct?
MR. ZABELL: That’s correct.
[5]
THE COURT: I mean he’s saying it’s defunct.
MR. ANTOLLINO: It doesn’t exist.
THE COURT: He’s saying it doesn’t exist.

14a
MR. ZABELL: I’m saying that the corporation has closed up and I’m still employed by them to represent their interests here if for no other –
MR. ANTOLLINO: It’s been dissolved by the Secretary of State.
THE COURT: Has it been dissolved?
MR. ZABELL: I believe it has, yes.
THE COURT: Well, I haven’t looked at that issue before but if the corporation, he’s still retained by the corporation. How long was it dissolved?
MR. ZABELL: I believe it was dissolved at or around the time that the trial was going on.
THE COURT: Right. So it –
MR. ANTOLLINO: No, it was dissolved in 2016.
THE COURT: Okay. So at the time of the en banc decision it was dissolved, right? So I don’t know. You’re suggesting this is a new issue that has to be resolved here because the Supreme Court is going to want to know. But apparently, the Second Circuit, it didn’t affect their disposition of the case, right? They still went forward.
MR. ANTOLLINO: I didn’t know about it, frankly. I think there is an affirmative responsibility when appellants [6] go up and they say who is who. But if Your Honor doesn’t want to address it, that’s your ruling.
THE COURT: Yes. I don’t think it makes any sense to address that right now while the petition is pending. If in fact the Supreme Court doesn’t want to hear the case because the company is dissolved, then that’s up to them I guess. But this is where the case is at, this is where it’s been at for years. To start substituting in

15a
parties while a sur petition is pending seems to me to be an unwise thing to do and doesn’t make any sense from a cost standpoint to start having discovery would make any sense. I don’t know how long it will take for the sur petition to get resolved but I don’t know what the timeframe – do you have any idea what the timeframe for that is? No.
MR. ZABELL: Virgin territory to me, Your Honor.
THE COURT: Yes. All right. But –
MR. ANTOLLINO: All right. So –
THE COURT: If you want to research it and put in a letter to me on that issue, Mr. Antollino, I’m always willing to look at it. You’re raising issues I hadn’t really thought about. So my instincts are that I should not be changing the parties while there is a sur petition pending. But if you want to show me case law that says otherwise, I’m happy to look at it.
MR. ANTOLLINO: I don’t think it’s my [7] responsibility. I’m just raising the issue. This is the first time that Mr. Zabell is concerned that he’s going to petition for sur. So I raised the issue and it’s been confirmed that the corporation is dissolved. That’s all we have to say until the last day that sur can be filed arise –
THE COURT: All right. And Mr. Zabell, I would obviously make the [indiscernible] to you. If you think that the petition would be moot because the company is dissolved, obviously let me know. I’m happy to look at amending the caption if either side suggests that it’s something I should do at this point in the case while the petition is pending. Okay?
MR. ZABELL: Yes.

16a THE COURT: But I don’t think given what I heard, I don’t think a settlement conference would be useful. So I’ll just await the resolution of the petition and then obviously we’ll have another conference depending on the outcome. Either way we’ll have a conference.
MR. ANTOLLINO: Or maybe not.
THE COURT: Maybe not.
MR. ANTOLLINO: All right. Thank you, Judge.
THE COURT: All right. Have a good day.
MR. ANTOLLINO: Bye.
(Proceedings concluded at 11:45 a.m.)
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