June 10, 2019

A Cup of Joe | Has Federal Employment Law Left the LGBTQ Community Without a Parachute?

This week’s case brings us to Shirley, NY, a few minutes away from the Hamptons, about 50 miles east of New York City, to a little skydiving company called Skydive Long Island. (The legal name of that company is Altitude Express, Inc.).

(My wife, Mrs. Cup of Joe, loves Bon Jovi and tandem skydiving. We have a video. So, I do not like Bon Jovi or tandem skydiving.).

What is Tandem Skydiving?

Altitude Express specializes in tandem skydiving for first-time skydivers. When you tandem skydive the customer is teamed up with a professional instructor who accompanies them for the entire event. Before the airplane door opens, the customer is attached to the instructor and remain attached for the remainder of the tandem skydive, parachute flight, and landing. Once the parachute is open, the customer has control and can fly it along with the instructor who is strapped to the customer’s back.

Tandem skydiving seems like an opportunity for mischief or misunderstanding. And here, it was.


Enter: Rosana, a first-time skydiver; David, Rosana’s boyfriend, who bought a skydive lesson for Rosana; Donald Zarda, Rosana’s Altitude Express instructor.

During the flight and jump, Rosana complained to her boyfriend, David, that she was touched inappropriately by her instructor, Donald. David complained to Altitude Express.  Donald denied any wrongdoing. He did, however, inform Rosana during the flight, that he was gay. Donald was fired. Donald sued claiming that he was fired because he is gay.

Testimony of David – Rosana’s Boyfriend

Q: While you were in flight, did any of the instructors say anything about the tandem process?

A: Yes. One of the instructors asked, "how do you feel about your girlfriend being strapped to another man?"

Q: Did you respond?

A: Yeah. You know, I just kind of laughed going along with it. I didn’t think it was a good idea to cross anyone who had control of our jump out of the plane. We can take a joke, right?

Q: Did you see Donald touching Rosana inappropriately?

A: Definitely. He kept putting his hands on her hips for practically the entire plane ride.

Testimony of Rosana

Q: Did Donald touch you inappropriately?

A: Yes.

Q: What did he do?

A: During the plane ride, just before the jump, Donald had his hand on my hip and he was resting his chin on my shoulder. That contact was creepy and made me uncomfortable during the jump. Then leaned forward to give me instructions right in my ear.

Q: Did Donald say anything to you during the actual jump?

A: Yeah. After pulling the parachute  he told me, "I hope I didn't make you feel uncomfortable on the plane, I'm gay."  And then he said that he had recently broken up with his boyfriend.


“A person who doesn't like to be touched should not [tandem] skydive.” - Altitude Express Instructor


Testimony of Donald:

Q: Did Rosana say anything to you after the jump?

A: Yes, sir. She said “awesome.”

Q: Did she do anything with you after the jump?

A: Rosana put her face close to mine and posed for a picture with me.

Q: Did you whisper anything into Rosana’s ear after the chute was pulled?

A: No. A whisper would never be heard on the way down. Ever.

Q: Did you put your chin on Rosana’s shoulder on the descent?

A: Yes. 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.

The Aftermath:

The court dismissed Donald’s federal anti-discrimination claims deciding that federal law does NOT protect the LGBTQ community. That issue alone is now being reviewed by the Supreme Court of the United States.  Altitude Express, Inc. v Zarda (Docket #17-1623).

The Importance of this Case:

New York State law affords the LGBTQ community robust statutory and decisional law protection in the workplace. Many other states do not have that protection and must rely on federal law. If the Supreme Court determines that federal law does not afford that protection, the LGBTQ community will be left with nothing until the federal law is amended or their respective state legislatures provide that specific protection.

Post Mortem:

Unfortunately for Donald, he will not see the outcome of this case.  Donald died on October 3, 2014 in Switzerland in a base jumping accident and the case is being continued by his family.

The skydiving case was consolidated with another petition, Bostock v. Clayton County, Georgia (Docket #17-1618), in which a gay employee in the county's child welfare service program was fired for his sexual orientation. In this case, the Eleventh Circuit ruled in favor of the county, that previous case law out of the Fifth Circuit allowed for dismissal of employees due to sexual orientation. The Court's granting of cert was announced alongside another related case to be heard by the court R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, related to whether Title VII protections included transgender individuals. Both Altitude Express and Harris are expected to be heard during the Court's 2019-2020 term.

If you would like to learn more about the facts of the skydiving case you will find a lot of material here: https://www.clearinghouse.net/detail.php?id=16018

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