After he was fired from his job for being gay, Donald Zarda never was the same again.
Until July 2010, Zarda worked as a skydiving instructor at Skydive Long Island in Calverton, New York, where he routinely went on tandem jumps with customers. As Zarda’s partner, Bill Moore, recalls of the incident, he sought to soothe the concerns of a woman whose boyfriend was nervous about her being strapped to a “really sexy guy” by telling her that he had a “husband in Texas.” While Moore lived and worked in Dallas, Zarda often had to move out of state during the summer months to find employment.
According to Moore, the rest of the jump went smoothly, and Zarda’s sexual orientation appeared to be a non-issue. But shortly after that day, Zarda was terminated from his job at Skydive Long Island.
The reason why Zarda was dismissed “changed multiple times,” as Moore explains.
“In the beginning, they said that he was being fired because he touched [the woman] inappropriately, which would have never happened,” he tells NewNowNext. “Then the story changed to that she was offended he had told her that he was gay in order to calm her down, so that her fiancé didn’t get so upset about her being strapped to such a good-looking man.”
Moore remembers that Zarda was “embarrassed” by the situation, which made it difficult for him to find work. When anyone googled his name, the first entries that came up were stories in the Daily Mail, Deadspin, and New York magazine saying he was fired for “spooning” and “fondling” a client.
Zarda never found steady employment again. He worked spare shifts at a drop zone in Texas while he went back to get a degree in aviation management, but according to Moore, he “lost his motivation to do most everything.”
“His specific words to me when it happened was: ‘My wings have been clipped,’” Moore says. “I will never forget when he said that.”
Moore hopes to give Zarda his wings back in June 2020, when the U.S. Supreme Court is expected to issue its verdict in Zarda v. Altitude Express, a discrimination lawsuit he filed against Skydive Long Island nine years ago. The case will be considered along with two other claims of anti-LGBTQ employment discrimination: Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.
The Supreme Court will not weigh in as to whether Zarda was, indeed, fired for his sexual orientation or if it was right to do so. Instead, the nation’s highest bench will decide whether Title VII of the Civil Rights Act of 1964 shields LGBTQ workers from being terminated solely on the basis of their sexual orientation or gender identity.
Last year, the U.S. Court of Appeals for the Second Circuit reversed its own decision to rule that Zarda’s claim would be covered under Title VII. In a 69-page written ruling, Chief Judge Robert A. Katzmann argued that the 55-year-old civil rights legislation’s definition of “sex” also applies to discrimination on the basis of sexual orientation, claiming that “firing a man because he is attracted to men is a decision motivated, at least in part, by sex.”
“Title VII instructs courts to examine employers’ motives, not merely their choice of words,” he wrote in a 9-3 ruling. “As a result, firing an employee because he is ‘gay’ is a form of sex discrimination.”
The New York-based appeals court had previously come to the opposite conclusion in April 2017, but decided to rehear the case en banc in light of Hively v. Ivy Tech Community College, which was decided the very same month as the Second Circuit’s initial ruling. The U.S. Court of Appeals for the Seventh Circuit claimed a lesbian adjunct college professor could sue her former employer under Title VII after she was fired for kissing her girlfriend in the parking lot.
But despite positive rulings from two appeals courts, Zarda will face powerful adversaries in October when the Supreme Court hears oral arguments in the case.
Although the Equal Employment Opportunity Commission (EEOC) has long held that federal civil rights laws bar anti-LGBTQ discrimination in the workplace, the Trump administration filed an amicus brief in the Second Circuit siding against gay, lesbian, and bisexual employees. The Department of Justice (DOJ) argued that sexual orientation bias is not a valid Title VII claim because it does not involve “disparate treatment of men and women.”
“[U]ntil the Seventh Circuit’s en banc decision in Hively earlier this year, the 10 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,” representatives with the DOJ wrote.
Although discrimination on the basis of sexual orientation and gender identity in employment is already illegal in 21 states, the Supreme Court’s decision will be critical in determining whether LGBTQ people are entitled to protection in the other 29. States that do not have inclusive nondiscrimination laws on the books include Florida, Georgia, Michigan, Ohio, Pennsylvania, Texas, and Virginia.
While Moore remains optimistic the Supreme Court will be on the right side of history, he admits that he’s “scared for the country that this could go the wrong way.”
“If it does, it’s going to affect people for the rest of their lives,” Moore says.
The deciding vote on the conservative majority bench is likely to be Brett Kavanaugh, who is something of a wild card. While Kavanaugh was appointed by Trump, his mentor is former Judge Anthony Kennedy, a centrist who offered the critical fifth vote in the Supreme Court’s 2015 ruling legalizing marriage equality. What complicates matters further is that Kavanaugh never ruled on LGBTQ rights cases during his decade on the U.S. Court of Appeals for the D.C. Circuit.
Whichever way the vote goes, Zarda sadly will not be around to see it. He was killed during a fatal skydiving accident in October 2014. He was 44.
After he was fired from Skydive Long Island, Moore says Zarda began going on increasingly dangerous jumps as he spiraled into a deep depression. At first, he purchased a wingsuit which allowed him to “fly around like a bird” for four or five minutes before opening his parachute. During a typical skydive, there’s only about 50 to 60 seconds of freefall.
When the adrenaline rush wore off, Zarda discovered BASE jumping, in which individuals jump from one of the four types of fixed objects that comprise its acronym: a building, antenna, span, or the earth. The latter two categories most often include jumping from bridges and cliffs.
The day he died, Zarda jumped off a cliff in Switzerland in his wingsuit. According to Moore, he impacted “before his wingsuit had a chance to take flight.” While Moore doesn’t blame Skydive Long Island for what happened, he says that if Zarda weren’t fired because of his sexual orientation, he would have been working instead of continually risking his life just to feel alive again.
“I don’t think that he would have been in Europe doing what he was doing,” Moore says. “I don’t know that it would have ever gotten to that point.”
Moore has kept pursuing justice on his late partner’s behalf, along with Zarda’s sister, Melissa. He claims Zarda never realized the case would get this far and that Zarda had extremely modest ambitions for the lawsuit. He was merely “hoping to get reimbursed for the money he lost that summer from skydiving and to clear his name,” Moore says.
But Moore believes that even if Zarda isn’t around to either celebrate or mourn with him when the Supreme Court ruling is read next year, he will be there in spirit. The day that Zarda died, Moore says he was in his home looking out into the street when a glass windowpane suddenly shattered. The couple lived near a school, and he thought one of the students must have thrown a rock through it. But when he looked around the living room, he couldn’t find one.
When he got the news that Zarda had died, Moore traced the time of his death back to that morning. It was around the same time the window broke.
“I will always think that it was him in some way,” Moore says. “I think about him every 15 or 20 minutes still. He’s in my mind constantly. I miss him so much and I’m fighting so hard for him. I love him and I hope he is at peace.”