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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
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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
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