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As an associate in the firm’s Miami office, Stephanie M. Spritz’s practice includes defending clients in complex litigation matters.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the bases of race, color, national origin, religion, and sex. Federal circuits are currently split on whether discrimination based on sexual orientation falls within the scope of discrimination based on sex (and therefore within the scope of Title VII’s prohibition). On February 26, 2018, the en banc Second Circuit Court of Appeals found in Zarda v. Altitude Express that Title VII’s prohibition of discrimination based on sex does in fact cover discrimination based on sexual orientation, overturning its own precedent holding from almost twenty years prior. This result signals increased viability for challenges advocating a broader interpretation of Title VII to remedy sexual orientation discrimination, as well as a potential pushback by the Jeff Sessions-helmed Justice Department as these challenges arise.

 

Zarda involved a skydiving instructor (Zarda) who alleged that his employer (Altitude Express) fired him in response to a customer telling them of his sexual orientation. The U.S. District Court for the Eastern District of New York granted summary judgment in favor of Altitude Express on Zarda’s claim, finding that Title VII failed to cover sexual orientation discrimination, and that Zarda failed to establish the type of gender-stereotyping claim covered by the act. The District Court considered itself bound by the Second Circuit’s 17-year-old decision in Simonton v. Runyon, and held that, absent an en banc review by the Second Circuit reversing Simonton, Second Circuit precedent required dismissal. Zarda appealed the summary judgment to the Second Circuit, which granted an en banc review. Writing the majority opinion, Judge Robert Katzmann wrote in the majority opinion that sexual orientation discrimination necessarily involves sex discrimination, as it means discrimination against someone based on their own sex in relation to the sex of those to whom they are sexually attracted. Katzmann noted that although Congress had not sought to address sexual orientation discrimination in Title VII, laws like Title VII “often go beyond the principal evil to cover reasonably comparable evils,” which in this case included sexual orientation discrimination. The Second Circuit thus reversed Simonson, vacated the summary judgment, and remanded the Title VII claim to the District Court.

 

By allowing such a claim to proceed under Title VII, the Second Circuit joined the Seventh Circuit, which found last April that Title VII covers sexual orientation discrimination in its decision in Hively v. Ivy Tech Community College of Indiana. Hively concerned an adjunct professor who alleged that her employer passed her up for full employment because she was openly gay. Hively argued that she faced discriminated for failing to conform to female stereotypes, and because she publicly identified as a lesbian. The Seventh Circuit reversed and remanded the summary judgment in favor of her employer. It found that “discrimination on the basis of sexual orientation is a form of sex discrimination” and that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” According to the Seventh Circuit, Title VII encompassed both her gender non-conformity and sexual orientation discrimination allegations.

 

The Eleventh Circuit held otherwise in Evans v. Georgia Regional Hospital, decided on March 10, 2017. The case involved a male-identifying security hospital security guard (Evans) allegedly dismissed from employment for failing to present as a woman. Like the plaintiff in Hively, Evans argued that she suffered discrimination due to her gender non-conformity, which she argued fell within the scope of Title VII’s prohibition of sex discrimination. The Eleventh Circuit agreed that Title VII protected against this type of discrimination, but found that she failed to make a prima facie showing of it. The Eleventh Circuit distinguished discrimination based on gender non-conformity from discrimination based on sexual orientation, and found that Title VII did not address the latter.

 

In Franchina v. City of Providence, decided on January 25, 2018, the First Circuit heard the city’s appeal of a verdict and judgment against it for a female firefighter’s Title VII claim that her employer provided her with a hostile workplace, where she suffered discrimination as both a woman and a lesbian. She proceeded under a “sex-plus” theory, or a gender discrimination claim alleging that an employer classifies employees based on their sex “plus” another characteristic (in this case, sexual orientation). The First Circuit held in denying the city’s challenge that the plaintiff’s claim of sexual orientation discrimination, although not technically redressable under Title VII, did not cause her meritorious sex discrimination claim to fail. In a jurisdiction following Zarda’s reasoning, this “sex-plus” heuristic becomes less meaningful or necessary for the plaintiffs to resort to, where sexual orientation itself becomes a protectable distinction. The difference between two jurisdiction’s analyses in cases like Franchina underscores the stakes in the national push for Circuit reconsideration of narrow judicial applications of Title VII.

 

After these cases, a pronounced Circuit split exists on the scope of Title VII’s coverage. On December 11, 2017, the Supreme Court refused certiorari for the plaintiff’s appeal in Evans, but more appeals to the Court’s jurisdiction on this issue appear imminent. The Second Circuit’s reversal appears to increase the impetus for the Supreme Court to address this question. In the meantime, state legislatures draft their own provisions aimed at remedying the type of discrimination typified by these suits.

In 2015, the Florida Supreme Court issued a decision in Aubin v. Union Carbide, which mandated that juries be instructed on the “consumer expectations test.” On November 28, 2017, seven years after initially filing her lawsuit, a plaintiff in  Miami-Dade County won a $6.9 million asbestos verdict in a retrial based on the Aubin decision, in Font v. Union Carbide, Case No. 2010-041578-CA-01, This was the plaintiff’s second “bite at the apple,” as the first trial had resulted in a defense verdict for Union Carbide.

 

In the case underlying the Font appeal, Aubin, the Florida Supreme Court rejected sole reliance on the Third Restatement of Torts’ “risk utility test,” under which a plaintiff must demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015). Instead, the Florida Supreme Court required courts to use the Second Restatement of Torts’ consumer expectations test, which asks whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. Id. at 503. As described by the Florida Supreme Court in Aubin, “[t]he critical difference regarding design defects between the Second Restatement and the Third Restatement is that the Third Restatement not only replaces the consumer expectations test with the risk utility test but also requires the plaintiff to demonstrate the existence of a ‘reasonable alternative design.’ Id. at 505.

 

In rejecting sole reliance on the Third Restatement’s risk utility test, the Florida Supreme Court in Aubin explained that the original reason for imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence by the product manufacturer. Id. at 506-507. However, the Third Restatement eliminates consideration of consumer expectations, and, in fact, “imposes a higher burden on consumers to prove design defect than exists in negligence cases” by adding the additional requirement that an injured consumer “prove that there was a ‘reasonable alternative design’ available to the product’s manufacturer.” Id. at 506.

 

Two years later, the potential impact of the Aubin decision on asbestos litigation in Florida has become apparent in cases such as  Font v. Union Carbide. In Font, the plaintiff, individually and on behalf of her father’s estate, filed a wrongful death action against Union Carbide and other asbestos manufacturers and distributors for negligence and strict liability based on an alleged failure to warn, and for the manufacture of an allegedly defective product. The plaintiff alleged that her father died of malignant pleural mesothelioma as a result of exposure to joint compound products and texture sprays designed, manufactured, and supplied by the defendants that contained Union Carbide’s asbestos.

 

At trial, the plaintiff requested that the standard jury instruction provided by the Supreme Court Committee on Standard Jury Instruction in Civil Cases be given to the jury verbatim. That instruction defined “unreasonably dangerous” under both the risk utility and consumer expectations tests and states in pertinent part: “A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits.” The plaintiff argued that she was entitled to submit her case to the jury on both theories of strict liability; however, Union Carbide argued that the Third District had previously rejected the consumer expectations test and determined that the appropriate standard was the risk utility test. Therefore, Union Carbide requested that the case be submitted to the jury only on the risk utility theory. The trial court denied the plaintiff’s request to include the consumer expectations instruction, and the jury returned a verdict in favor of Union Carbide, which the plaintiff appealed.

 

On appeal, the plaintiff sought reversal because the trial court did not instruct the jury on the consumer expectations test. The Third District affirmed the lower court’s decision, and the plaintiff petitioned the Florida Supreme Court for review. The Florida Supreme Court accepted jurisdiction of the matter, quashed the lower court’s decision, and remanded to the Third District for reconsideration in accordance with Aubin. Ultimately, on July 27, 2016, the Third District reversed the judgment in favor of Union Carbide and remanded to the trial court, with directions that the plaintiff’s strict liability claim be retried before a jury instructed on both the consumer expectations test and the risk utility test as alternative definitions of design defect.

 

The second trial was interrupted by the Thanksgiving holiday which, significantly, allowed for long closing arguments to refresh the jury’s memory after an 11-day break between the majority of the trial and closings.  On retrial, the jury returned a verdict for the plaintiff to the tune of $6.9 million ($2.8 million of which was assigned to Union Carbide).

 

In Aubin, the Florida Supreme Court discussed the premise that the “consumer expectations test does not inherently favor either party.” Based on the outcome in Font, that may not necessarily be true, and the Aubin decision could have far-reaching effects on asbestos litigation.  Nevertheless, at this juncture, the full impact of Aubin remains to be seen.