PHOTOS: 2nd Circuit Court of Appeals Hears Argument in Major Employment Discrimination Case

By Adam Polaski • September 27, 2017 • 4:17 pm

On Tuesday, September 26, the 2nd Circuit Court of Appeals heard oral argument in Zarda v. Altitude Express, Inc., a key federal employment discrimination lawsuit out of New York that concerns a man, Don Zarda, who was fired from his job as a skydiving instructor because of his sexual orientation. Don has passed away since the initial filing of his case, but it is being continued by his sister Melissa Zarda and his life partner Bill Moore.

The case is especially significant for the national landscape of LGBTQ nondiscrimination protections because plaintiffs argue that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on sexual orientation. Such a ruling would stand to change longstanding precedent for the entire 2nd Circuit, which has jurisdiction over Vermont, Connecticut, and New York. In April the 7th Circuit Court of Appeals – which covers Illinois, Indiana, and Wisconsin – became the highest court to ever rule that discrimination based on sexual orientation amounts to discrimination based on sex.

Kasey Suffredini, Acting CEO and President of Strategy for Freedom for All Americans, said yesterday:

“Today’s hearing is an important opportunity for the 2nd Circuit to overturn outdated, exclusionary legal precedent that permits discrimination against gay and bisexual Americans in the workplace. No American should be harassed, fired, or denied a job because of their sexual orientation. Hardworking people should be judged solely on their work ethic and qualifications – not who they love.”

The case was heard en banc, meaning before the full 2nd Circuit court — a rare phenomenon that has taken place only a handful of times in the last decade, and a strong indicator of the case’s significance. Notably, the Department of Justice and the Equal Employment Opportunity Commission (EEOC) presented arguments on opposing sides, in a rare split between two federal government agencies over the same issue.

Bill Moore, plaintiff Don Zarda’s life partner and co-executor of his estate, spoke at a press conference coordinated by Freedom for All Americans and Lambda Legal following the oral argument.

“I want nothing more than to see justice for Don — and for countless Americans who face discrimination at their jobs every year because of their sexual orientation. I hope the 2nd Circuit will overturn its outdated precedent, in Don’s name and pave the way for more equality, everywhere.”


Freedom for All Americans has been involved for the past few months in providing support to the case, which is brought by attorney Gregory Antollino and supported by Lambda Legal. In June, FFAA recruited 50 businesses representing more than 370,000 employees to file a friend-of-the-court brief in support of the plaintiff. It marked the first time that businesses have explicitly taken the legal position that discrimination in employment based on sexual orientation is illegal under Title VII. The list of signers includes Google, Microsoft, Viacom, Spotify, CBS, Ben & Jerry’s, Levi Strauss & Co., and more.

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