Zarda v. Altitude Express: Decided by the Supreme Court for LGBT Workers Nationwide

In June 2010, I filed an EEOC charge and, shortly thereafter, a complaint in the Eastern District of New York, alleging discrimination on the basis of sexual orientation as a subset of sex. We could not overcome earlier interpretations of the law, but I fought, first to a three-judge panel of Second Circuit, which held that Mr. Zarda would have to bring his case to the En Banc court, which means all active judges plus any senior judge who sat on the panel. I argued to the en banc and won 10-3.

My opponent petitioned review at the Supreme Court, and after consolidation with two other similar cases, the justices decided 6-3 that LGBT workers are protected under the language “because of sex” under the Civil Rights Act of 1964. This means that all employers with at least 15 employees may not discriminate on the basis of sex. It was a long haul, and changed – and will change – United States history. The case was argued for the employees by Pamela Karlan, a prominent constitutional law scholar (below, preparing in the Supreme Court cafeteria) who has stood behind the lectern nine times now and won all but a couple of her cases.

Supreme Court, Early AM


Professor Pamela Karlan preparing for oral argument

©Gregory Antollino

© Gregory Antollino

What's Your Drag Name?

(We’re living in a new world, but let’s not abandon humor.)


Sunday, June 7, 2020, © Gregory Antollino

Let's Retire this Phrase

© Gregory Antollino (share with attribution)

Flowers behind the Fence

Most of those nurses are heroes, but some were terribly defrauded. I doubt I can take any more clients, though I keep getting calls.

When I filed a lawsuit against Krucial Staffing, I concluded that the City of New York (or one of its agencies) had hired Krucial. The employees were working in NYC public hospitals. When asked by Mother Jones if Krucial were an agent of New York City, the City declined to comment. There was no coordination in efforts between Krucial Staffers and the New York City Health and Hospitals. Indeed, HHC banned from Elmhurst Hospital, a whistleblower who dared speak to the media. The HHC refused to answer my Freedom of Information request, rejecting it on the grounds of the pandemic. This might seem reasonable, but a pandemic results from a failure of medical care as well as the improper transmission of information.

A. Krucial Staffing and the Mayor

Brian Cleary stated on KMBC of Tulsa in late March that the Mayor of New York, Bill de Blasio, had personally called him to help with the pandemic. I heard that with my ears. However, now, if you click the link I posted about a week ago, you will see that the video has been edited to omit that assertion. It was redone, back-dated, and no retraction was posted by KMBC. Shame on KMBC. Again, a pandemic results, in part, from a lack of consistent information. I know what I heard. Brian Cleary said Mayor DeBlasio personally called him. This statement has been retracted. Why?  

My connection between Brian Cleary and the Mayor (or even the City) was based, in part, on Brian Cleary’s lie. I will seek the outtakes, but no small station will care about a subpoena from a New York lawyer. KMBC should know, however, that journalistic ethics require that it make clear that “an earlier edit of this broadcast…” etc. If KMBC is journalistically ethical, it will make that clarification that it changed its reporting. I would not have wasted posting it on my website if I did not believe it to be significant evidence.

B. Krucial Staffing Distances Itself from the Mayor

Meanwhile, this weekend, my Google alerts on “Krucial Staffing” revealed something different – not from Cleary, but one of its workers – in an online periodical from Somerset, Kentucky, Commonwealth Journal. In the Journal, the staffer was quoted as saying that “Krucial Staffing . . . is working with FEMA (Federal Emergency Management Agency) to staff 14 hospitals in New York.” http://” How does Commonwealth Journal know this? Did it come from Brian or the nurse interviewed for the article? Is it true? Despite FEMA, is there anything connecting Krucial to the City of New York. These questions are reasonable. Krucial Staffing incorporated in 2019, so if there are no terrible Yelp reviews, that is probably by design. Meanwhile, I cannot imagine that its contract with the City or FEMA is worth anything less than in the billions.   

Yesterday, the City Office of Emergency Management (OEM) rejected my request for information as to the links between OEM and Krucial. Its FOIL officer stated, “There is no contract between Krucial Staffing and OEM.” I would have thought this agency had some agreement with Krucial. And what about HHC – which can just as quickly deny connection to Krucial. But HHC stuck me with, “we’re too busy.” I appealed that determination and HHC rejected it again. Why not come out and say yes or no? OEM did. I fine-tuned my request to OEM because that agency might have subcontracted with another agency to hire Krucial Staffing. We’ll see what they say in the statutory five days, or reasonably after that.

I might have been misinformed all along, but I can’t say for sure. While there were apparent hints and I still don’t know, maybe FEMA is responsible for hiring Krucial. Thus it need not comment. This speaks to the federal government’s response to the pandemic, which, perhaps, the City didn’t want to upset because Donald Trump is withholding aid? It’s a reasonable theory.  

C. Krucial’s Lawyers Threaten Gregory Antollino

Krucial’s law firm, Lathrop GPM in Kansas City, contacted me a week ago, warning me not to “publically post [or] communicat[e] false statements about” Krucial and Brian Cleary. Lathrop GPM is marketing itself to defending corporations in the pandemic. As for me, Lathrop said my “conduct . . . might” violate the Rules of Professional Responsibility in New York. He did not tell me how even when I asked for clarification. The rule in New York is that lawyers cannot invoke the disciplinary rules to obtain a “civil advantage.” 

Lathrop GPM, through a high-ranking partner, probably violated that rule. Still, it failed to put me on notice as to what how I had violated any provisions of professional conduct. It merely tried to scare me. Its letter said I might be “subjecting [my]self to personal liability for defamation and trade liable.” There is no such thing in New York as “trade liable,” by which the attorney probably meant “trade libel.” Those cases are rare. Remember the trial in Texas against Oprah for saying she would “never eat a hamburger again?” She won, and it raised her stature.

Also, truth is an absolute defense in all libel actions and New York has a powerful “litigation privilege,” allowing parties and attorneys to comment on pending litigation. New York also has an anti-SLAPP statute. In theory, the anti-SLAPP is there to protect whistleblowers (like my clients or me) from filing a lawsuit then being “slapped” with a libel claim.  

I believe I am protected under New York law. Nevertheless, I want to know whether the City of New York, FEMA, or both have any connection to Krucial Staffing. Why won’t the City tell the public? A sociologist was recently quoted in The Atlantic, in commenting on the pandemic and the information that will come with it, that “Alarmism is equated with misinformation . . .  [b]butwhen you do have some [information] coming, no one feels empowered to say: ‘This one isn’t alarmism . . . There’s a cultural script that we play, and when the script changes, it takes time to shift to a new one.” Zeynep Tufekci, a sociologist from the University of North Carolina, said this. See the entire article here:    

Meanwhile, someone needs to correct the script, or stick to a consistent, truthful script by which we can all guide ourselves.

It is hard for nurses – some long-term employees, working in hospitals caring for COVID-19 patients – to speak out during the pandemic. One brave nurse reported her experience to the New York Times in an opinion piece. Meanwhile, NYU-Langone is threatening nurses with termination if they speak to the press, as published in Bloomberg News. The article said that “the NYU Langone Health system has warned employees they could be terminated if they talk to the media without authorization.” Read it here.

As an NYU Law grad, I am shocked that any part of my alma mater, which bills itself as “A Private University in the Public Service,” would issue such an edict. Free speech and public knowledge are surely within public service. (I do believe that NYU Law School has not lost this mission; if you visit its website, there are publically accessible information about COVID and the law.) But the hospital has lost its way. It should go to one of the Law School’s presentations about this and stop worrying about the exposer of truth.

Anyway, Mother Jones, a venerable publication that seeks to expose cover-ups and untruths of government and the oligarchs, was unafraid to publish a story about my nurses. See the Mother Jones article.  The case has also been covered by the Business Insider and Becker’s Hospital Review.

Meanwhile, the case has been covered in some local press outlets in New York (TODAY), a local news affiliate in Kansas, and a FOX affiliate in Oklahoma. In the latter, Brian Cleary, Krucial CEO, admits that the call for Krucial came from lame-duck New York City Mayor Bill DeBlasio. See KBMC. Meanwhile, the City of New York Health and Hospitals Corporation refuses to post the public contract on The City Record Online. When asked by the Mother Jones‘ journalist, the City declined to comment on its connection to Krucial. My Freedom of information request has gone unanswered.  RE FOIL Request for Contract between Krucial Staffing

Government entities that refuse to tender documents, supposedly within the public record, are using COVID as an excuse. FOIL requests are supposed to be answered within 5 days; extra time is appropriate, but 60 days? Meanwhile, the nurses were duped. The nurses suing Krucial were promised one thing and given something that could lose them their licenses or affect their (and their family’s) health. If you think that’s OK, that’s your decision. But Krucial misrepresented the terms of safety; it distorting the terms of what these nurses will have to face. If some nurses are willing to die without proper personal protective equipment, that is their decision, and there will likely be deaths. But none of the plaintiffs who objected to lack of safety came to New York assuming such a risk.

The amended complaint was recently filed (see below). That, plus the reporting, has created some changes. First, Krucial appears to be paying for the quarantine of nurses at the New Yorker Hotel, or elsewhere, where many workers are being housed. (They were not doing that before.) CEO Brian Cleary, however, is sending blast emails to employees to be sure to get proper personal protection equipment, or don’t accept an assignment. That email was likely something it did to cover Krucial’s tracks, and it has removed from its Instagram site a representation that all employees will get proper PPE. The video started was called “PPE Policy,” and it is now deleted. So Krucial now has no PPE policy!

But the follow-up question is this: What will the workers do then if they don’t get proper PPE? The City has sought bids on proper masks, but could it not have done this before luring nurses from all over the country through Krucial? Moreover, the City did little due diligence  Likely, these unsuspecting nurses will be told to “demobilize” – a term within Krucial’s lingo that means to stop working and go home. Krucial’s employee handbook requires nurses to follow OSHA guidelines, which require proper personal protection equipment. The NYC Health and Hospitals Corporation requires the same. Krucial is getting many, many calls in this unemployed economy, and will happily dispose of nurses who can’t get PPE. (The City of New York Health and Hospitals Corporation, meanwhile, is complicit in these failures, but I will have to see its contract with Krucial Staffing before I can ascertain if it has legal responsibility. I had previously stated that

I have other cases, but this one really burns me up – for my clients, the public, and because of the incompetence the Mayor has shown in deploying Krucial without due diligence and without coordinating with HHC hospitals. The DeBlasio administration deserves a post-mortem analysis before the Mayor goes onto greener pastures. He seemed so promising when he came into the office! But the White Knight failed in his progressive vision, promising so much, delivering so little. I cannot wait until he becomes the next Giuliani, slobbering on himself as he tries to stay relevant. DeBlasio might get onto “Real-Time” – he is friends with Bill Maher – but as they used to say of Nixon after he resigned, no one would elect him dogcatcher. What an eight-year disappointment he has been. To think that anyone thought he should be president other than him. He’s a charlatan, and not up to hs job now, let alone higher office. I remember when he first ran, I walked up to him and shook his hand. I did not vote for him in his second run, preferring to register a protest vote.

Krucial Staffing has also responded to the claims of MANY employees who were not properly fitted for an N95 mask. The N95 is the standard of care in preventing infections of health care providers, but these masks require a fit to be sure there is a seal that protects the nurses. The City is not providing these tests – or is doing so incompetently – and Krucial is not willing (nor, to be charitable) able to do them either. Therefore, Cleary recommends that anyone without a proper “fit test” – which determines the size of the respirator needed – to go to their hometowns over Easter Weekend. Who would have paid for the trip was unspecified, so you can be sure Krucial was not paying. Cleary’s suggestion is what is known in the law as a “pretext”: a lie to cover up true motives. CEO Cleary knows that no one who wants a proper fit test will go home and them come back – presumably on their own dime – especially after a holiday weekend. Indeed, should they go back to their hometown, they might have been quarantined for two weeks, depending on the state. Krucial is merely trying to shed these “problem employees” ASAP. It is not a surprise to me that DeBlasio trusted this fraud.


amended complaint

I’ve been working from home but it happens that some work I’ve been doing is COVID related. I’m glad to be – if not on the front lines – a few lines back.

Layoffs and furloughs because of COVID-19 have occurred and will occur in the future. But if there is a downsizing of one, and the *one* is you, then maybe COVID is not the real reason. Why were you selected? Was it because you were not working up to par? If so, termination might be a blessing. But I have found, in over 20 years of employee-rights practice that *usually* where there is an abbreviated layoff involving just a few, that those chosen were not chosen because of their skills, but (mostly) their age (or other discriminatory reasons).

I just filed a lawsuit – and, remember, a lawsuit contains only allegations and is not proof – that a major property management company feared my client, an administrative employee, had COVID-19 because she visited her daughter’s school in Elmhurst, Queens. (Elmhurst is a hotspot within the bigger New York City hotspot.) She does not have COVID, nor do we believe that because she visited a school that the employer believed she had COVID. Instead, this was a lie – the company really wanted to get rid of her because she had an accent.

Of course, many of us have heard of Asian Americans being targetted for rage and abuse because the coronavirus originated in China. That could happen in the workplace as easily as it could in the street.

I have also just filed a lawsuit – again, alleging facts with detailed allegations – that medical workers (nurses, mostly) are being deployed to New York by a Krucial Staffing (hired by the City of New York Health and Hospitals Corporation) in a bait-and-switch scheme. The company promised many nurses – mostly of African American descent, most in their late 20’s/early 30’s – huge combat pay to travel to New York. It promised Personal Protection Equipment – the most important of which is the N95 mask – and several positions to fill. They should not have made this representation, which we contend is a fraud; New York City did not have positions to fill, except for nurses willing to work in positions they were not competent to perform. This risks patients and the nurses, as the latter were not provided proper personal protection equipment (PPE), a common problem, but nevertheless something this company promised. Many of the traveling nurses developed symptoms, and – without quarantining or testing them for COVID – sent them on packed planes where, if exposed, could infect other passengers. Others quit their jobs to be on the front lines.

Some nurses complained and were told to “demobilize,” which basically means fired. The CEO of the company, after the nurses arrive in New York, is telling workers to be “flexible,” even though the company made promises that proper PPE would be provided, something the nurses replied on.

The lawsuit also brings claims under New York Labor Law § 741, which is perhaps the only whistleblower statute that has any teeth in the State of New York. Section § 741 requires a health-care employee who believes that patients are receiving substandard or inadequate care to report the violation to a supervisor immediately so the facility may correct the violation. If, after reporting the violation, you lose your job, you are a whistleblower and may sue within two years. (Item: a health-care worker’s good-faith belief in a violation, if reported, qualifies the worker for Labor Law protections. (There is also a weaker whistleblower law that applies to all employees – Labor Law § 740 – but it is weaker as it requires the violation must actually be a violation; good-faith belief doesn’t count.

I am interested in these cases. We do not have to meet (right now) in order for me to take your case if the facts support a lawsuit. If you believe you were fired for reporting healthcare violations, call me at 212-334-7398 to discuss. I can also refer you to other attorneys.

Also, Krucial, after the agreement on wages for employees was to include payment for quarantine, they reneged on that promise as of recently. If you have not been paid wages in accordance with your original agreement, please contact me at 212-334-7398 and once New York State courts reopen I will be filing “Wage Theft” cases against Krucial for reneging on quarantine pay, which allows double damages and attorneys fees to Krucial’s victims. They are not an honest company, as I have learned in my conversations with so many Krucial employees and reading documents in connection with the lawsuit. If you can’t get through on the phone to get a job with Krucial, you might consider that a blessing!

The amended federal complaint is attached below.

amended complaint

Excuse the digression, and the answer is obvious. But I remember the practice of law in the early 2000s, when bigger firms (and some smaller ones) started posting basic information online. I resisted. Then I got a call from a client who asked me, after describing her case, how many years’ experience I had. That’s a fair question, and then she asked me “How can I see your website?” The implication was that I would have one. I did not.

That client never retained me, and in the next several months I generated a basic website with information about my background, my victories, my practice area. It was low tech, but it sufficed.

Then graphic artists became more sophisticated in their website work. I upgraded to something more bouncy. That worked fine for a while, then I found my website “Host” had not properly updated its capacities. Suddenly my “PHP” was vastly out of date. I had (have) no idea what PHP is, though I tried to find out. But I am not a coder; I was, alas, unable to upgrade my PHP. So I changed my “Host.” I am not entirely satisfied with my new “Host,” but it has the proper PHP. In the transition meanwhile, I lost about ten good blog posts that I had spent a lot of time on – and they attracted potential clients. And I stopped blogging for about six weeks I was so discouraged.

So this is my first blog post since 2018 . . . that is except for the 8 lost a month ago. So if I start blogging again today, it’s still got to be about my case at the Supreme Court, Altitude Express v. Zarda (which will be known as Bostock v. Clayton County). The consolidated cases have not yet been decided, but will be by June 2020.

So as the interested await that decision, there have been interesting pieces written about the issues:

NBC News

Washington Post

Masha Gessen, The New Yorker

The argument was held on October 8 and is on CSPAN: Oral Argument

That’s enough, but here are a few pictures from the big day in the basement (which includes the famous cafeteria) and after the argument:

Supreme Court, Early AM

These kind people were from the Aimee Stephens team. Aimee is the plaintiff in a case argued the same day as Zarda. The related issue questions whether a transgender person is protected under Title VII because that law forbids sex-stereotyping. From left: Chace Strangio, Esq.; David Cole, Esq.; Laverne Cox.

Pamela Karlan preparing for oral argument at breakfast.

My big win at the Second Circuit, Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018) (en banc) has a petition for certiorari pending at the U.S. Supreme Court. This is a request for the high court to take the appeal and decide it. The Court takes only 5% of cases. Since #Zarda changed the interpretation of discrimination law to protect sexual orientation discrimination. It is possible the court could take the case. We think the interpretation is simple, but there are others – including my opponents – who do not. We were hoping for a quick denial of the petition, but there happen to be two others that touch on the same subject so the court might be tempted to take them all. However, the decision whether to take these cases is complex. There are many side issues involved, including that the corporation we sued is defunct. Anyway, we were originally scheduled to be at the Justices’ secret conference on September 24. Then the case was marked simply “rescheduled” without a date. In October, we were put on this Friday’s conference calendar. I was looking forward to a decision in a week, but we were rescheduled again yesterday, again without a date. If they take the case, it doesn’t mean the Court would reverse the win, simply that it would make a decision for the whole country. We’ve made the argument that this should wait until more than a few courts have had their say. It will be very sad if this Court takes away the right to be protected from discrimination simply because one is gay.

Many transgender or intersex individuals prefer to use names and pronouns that do not match the ones they might have been assigned at birth. Sometimes this can be confusing for others, who may slip up occasionally and use the wrong name or pronoun. But sometimes the stubborn and spiteful will refuse to use those names or pronouns, even when someone has made the preference known. If this refusal is happening to you at work, your employer, supervisor or coworkers who are involved can be held accountable. Think of how you felt when you were a child and someone called you a “boy” or a “girl” when you were the opposite gender. The same is true for people who suffer from gender dysphoria, where they do not identify with the sex that biology assigned them at birth.

There are laws that prohibit workplace discrimination and harassment, the most stringent of them in New York City is the NYC Human Rights Law . This law states that you have the right to use your preferred name, even if it does not match your anatomy, medical history, appearance or identification documents. This law also requires employers to use your preferred name, pronoun and title, such as Mr., Ms. or Mrs., in almost all instances.

According to the NYC Human Rights Law, gender discrimination includes discrimination or harassment based on gender identity, gender expression, transgender status and intersex status. This means that if your boss, or someone else at your work, refuses to use your preferred name or pronoun, it is an act of gender discrimination and can be legally pursued as such.

If you have experienced gender discrimination at work, you have up to one year to file a complaint with the NYC Human Rights Commission’s Law Enforcement Bureau. You also have up to three years to file a complaint in the New York State Supreme Court. The legal consequences for the discrimination will be determined based on the specific circumstances of the incident.

Gender discrimination is a serious problem. No one should experience gender harassment or gender discrimination at work, but unfortunately, it still happens. This is why it is important to be aware of your human rights and the ways you can take action if those rights are violated. I spoke on this to some student journalists in a very illuminating interview that you can see on YourTube: Gender Arrest

Creating an environment free of sexual harassment AND any type of harassment based on your race, ethnicity, sexual orientation disability is one of the biggest challenges for better employers. Although incivility and plain old rudeness are not protected by the law, one of the most complicated areas of creating a safe environment is training employees about the dangers of sexual harassment, or other illegal forms of harassment.

Some employers don’t recognize how to educate their workers – including those higher on the management chain – about illegal harassment is how, or to avoid it and report it. It is far more than merely conducting a required training. According to the Occupational Safety and Health Administration, all employers are legally required to post an anti-harassment policy on the premises of their establishment in a place where it is visible to employees. Additionally, they need to have documentation that all employees have undergone the required training that defines what sexual harassment is. All bigger employers have anti-discrimination policies; the question is what does the employee do to enforce it. In a lawsuit under the New York City Human Rights Law, the employer’s burden is to prove the enforcement of the harassment policy. Failure to do either of these things can result in punitive damages or, under OSHA rules, fines exceeding $1 million in severe cases.

While both of those tasks are incredibly important, the Society for Human Resource Management suggests that the most effective training focuses on educating employees on how to be respectful and tolerant of their fellow cohorts. It will empower them to report incidents of harassment if they are being abused or if they are a witness to someone else’s abuse. Workers who are in supervisory positions should receive training about how to respond to complaints in a way that is timely, respectful, legal and professional. When employers think outside the box about how to incorporate training into their efforts to educate about sexual harassment, they may be much more effective in encouraging a workplace that is inclusive, safe and successful.

I’ve been litigating harassment cases since the 1990’s – well before the #MeToo movement. All of those cases settled, but I am currently leading a team of fourteen employees at a major construction company where nooses were openly displayed in the workplace. The case is pending and a mediation – a settlement conference – will take place in January. If the employer wants to avoid exposure, it will settle. I would love to take this case to trial and have a jury say whether nooses in the workplace will be tolerated, and, if not, whether the employer should be punished.

Here is the Wikipedia link

The case is on appeal and will be conferenced on 11/30 at the U.S. Supreme Court. The best outcome for my clients is that the Court denies review. The second best outcome is that they grant review and affirm the 10-3 win at the Second Circuit, which is reported at 883 F.3d 100 (2d Cir.2018) (en banc). The decision holds that Title VII of the Civil Rights Act of 1964 (as amended in 1991) protects against sexual orientation discrimination in the workplace. Currently, most states allow this type of discrimination, which means two men or two women could get married on Sunday and fired on Monday for that very act. This is unconscionable and we hope the high Court simply denies review.
See more about my appellate work at

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