Argument Date: October 8, 2019

Issue(s) in the Case: 

Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”).


These two consolidated cases concern the same issue. Donald Zarda (deceased) was a skydiving instructor who claimed he was fired due in part to his sexual orientation. Mr. Bostock was a child welfare services coordinator who claims he was fired due to his sexual orientation. During the peak of the Civil Rights Movement, Congress passed Title VII to outlaw employment discrimination.[15] The statute explicitly prohibits employers from discriminating against workers on the basis of race, color, religion, sex, or national origin.[16] It applies to private and governmental employers.[17]


In 2010, Mr. Zarda, a gay man, worked as a sky-diving instructor, and his job at times entailed participating in tandem skydives with clients.[18] When participating in such skydives, clients were often strapped chest-to-back and pelvis-to-pelvis with their instructor.[19] Mr. Zarda often informed female clients of his sexual orientation to assuage any potential discomfort the client may have had regarding their bodies’ close proximity.[20] After informing one female client of his sexual orientation, and then performing a tandem jump with her, the female client accused Mr. Zarda of inappropriately touching her.[21] In response, Mr. Zarda’s supervisor fired him.[22] The supervisor also told the New York Department of Labor that Mr. Zarda was fired “for shar[ing] inappropriate information with [customers] regarding his personal life.”[23] Mr. Zarda filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC), claiming that he was fired because he disclosed his sexual orientation and refused to conform to a “straight male macho stereotype.”[24] He then filed litigation in federal court alleging, among other things, that Altitude Express violated Title VII by terminating him because of his sexual orientation.[25] Mr. Zarda lost at the district court level, but asked the court to reinstate his case after the EEOC determined in another matter that sex discrimination includes sexual orientation discrimination.[26] The court declined to do so.[27] However, the full en banc Second Circuit Court of Appeals found in Mr. Zarda’s favor, holding that sexual orientation discrimination is sex discrimination under Title VII.[28]


Gerald Bostock is a gay man. He was previously employed as a child welfare services coordinator for the Juvenile Court of Clayton County, Georgia.[29] Throughout his ten-year career working for Clayton County, Mr. Bostock received numerous favorable evaluations of his work and several awards.[30] He was ultimately given responsibility over the Clayton County Court Appointed Special Advocates (CASA) program, whose volunteers “advocate for the best interests of the child” during juvenile court dependency proceedings.[31] In 2013, Mr. Bostock joined a gay recreational softball league and spread awareness among league members of volunteer opportunities through the CASA program.[32] Mr. Bostock’s sexual orientation and his participation in the gay softball league were openly criticized by an individual of considerable status in the Clayton County court system.[33] At least one of Mr. Bostock’s colleagues made demeaning remarks about his sexual orientation and his participation in the league at a meeting attended by Mr. Bostock’s supervisor.[34] Soon thereafter, Clayton County fired Mr. Bostock, stating that the basis for his firing was engaging in “conduct unbecoming of its employees.”[35] After filing a charge of discrimination with the EEOC, Mr. Bostock filed a lawsuit against Clayton County under Title VII, claiming that the county discriminated against him based on his sexual orientation.[36] The district court dismissed his case, finding that sexual orientation discrimination is not covered by Title VII.[37] The Eleventh Circuit Court of Appeals affirmed the dismissal of Mr. Bostock’s case.[38]

Key Issues: 

Title VII is one of the foundational anti-discrimination statutes. These cases will determine whether it will protect the LGBTQ community from discrimination based on sexual orientation. The employees in these cases argue that sexual orientation is covered by Title VII’s prohibition against discrimination based on sex because:

  • Sexual orientation is a function of sex (i.e., if you treat a man who is attracted to men differently than a woman who is attracted to men, that is discrimination based on sex);

  • Sexual orientation discrimination is based on a sex-based stereotype (i.e., that men should be attracted to women and women to men); and

  • Sexual orientation discrimination is associational discrimination based on sex.

Importance as a Matter of Civil Rights: 

LDF joined 58 other civil rights organizations in an amicus brief on behalf of the employees. The amicus brief highlights Title VII’s critical role in advancing civil rights. The brief also highlights that LGBTQ workers of color face particularly high levels of discrimination, and it can be difficult to disentangle sexual orientation discrimination from race discrimination. Finally, the brief notes that excluding LGBTQ discrimination from Title VII protection would call into question settled law around other forms of discrimination long considered within Title VII’s scope.

Brief of United States: 


The United States filed a brief supporting the employers and arguing that Title VII does not protect against sexual orientation discrimination.

[15] Civil Rights Act of 1964,, (last updated Jun. 6, 2019).

[16] U.S. Equal Emp. Opportunity Comm’n, An Act, (last visited Oct. 1, 2019).

[17] U.S. Equal Emp. Opportunity Comm’n, Coverage, (last visited Oct. 1, 2019).

[18] Brief in Opposition at 2, Altitude Express, Inc. v. Zarda, 2019 WL 4283782 (U.S. 2019) (No. 17-1623),

[19] Id.

[20] Id.

[21] Id. at 3.

[22] Id.

[23] Id.

[24] Opinion at 11, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (No. 15-3775) (en banc),

[25] Id. at 12.

[26] Id. at 12-13.

[27] Id. at 13.

[28] Id. at 20-21.

[29] Petition for Writ of Certiorari at 5, Bostock v. Clayton County, 139 S. Ct. 1599 (May 25, 2018) (No. 17-1618),

[30] Id.

[31] Id. at 5-6.

[32] Id. at 6.

[33] Id.

[34] Id. at 7.

[35] Id.

[36] Id.

[37] Id. at 10.

[38] Id. at 11.