Title VII Claim Based on Sex Orientation Dismissed

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By Kevin McGowan

March 9 — A gay marketing firm employee who alleged workplace harassment based on his sexual orientation can't proceed with a claim under Title VII of the 1964 Civil Rights Act, a federal district court in New York ruled March 9.

Granting Omnicom Group Inc.'s motion to dismiss, the court said U.S. Court of Appeals for the Second Circuit precedent compels a ruling that Matthew Christiansen failed to state a cognizable claim under Title VII because the federal law doesn't reach bias based on sexual orientation.

But changes in the “broader legal landscape” occurring since the Second Circuit's 2000 ruling may mean it's time to reconsider if Title VII's ban on sex discrimination includes bias based on sexual orientation, Judge Katherine Polk Failla wrote.

Taking up the court's invitation, Christiansen March 9 filed a notice of appeal to the Second Circuit.

Much of Failla's opinion was taken “word for word” from Christensen's brief, and the court seemed to be inviting an appeal, Susan Chana Lask, the New York lawyer who represents him, told Bloomberg BNA March 9.

Court, Commission Evolve

The U.S. Supreme Court's recognition of same-sex marriage as a constitutional right and the Equal Employment Opportunity Commission's federal-sector decision saying Title VII covers sexual orientation are among the changes suggesting that a new interpretation of Title VII perhaps is warranted, Failla said.

The EEOC March 1 filed its first two Title VII lawsuits against private-sector employers alleging that sexual orientation discrimination necessarily violates the act's ban on sex discrimination . In 2015, the EEOC ruled a gay federal employee alleging harassment based on sexual orientation stated a triable Title VII claim .

On appeal, Christiansen will ask the Second Circuit to revisit Simonton v. Runyon, 232 F.3d 33, 83 FEP Cases 993 (2d Cir. 2000) , in which the appeals court ruled Title VII doesn't cover sexual orientation.

“Judge Failla made clear that she would have ruled differently considering the wealth of other district court and EEOC cases holding sexual orientation claims should be heard,” Lask said.

Representatives of Omnicom weren't available for comment March 9.

The Second Circuit in Simonton distinguished between bias claims based on sexual orientation and those based on failure to conform with sexual stereotypes. The latter “should not be used to bootstrap protection for sexual orientation into Title VII,” it said.

The district court cited the “futility” of trying to distinguish between bias based on failure to conform with gender norms, or “sexual stereotyping,” and sexual orientation discrimination.

“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims,” Failla wrote. “Yet, the prevailing law in this circuit—and, indeed, every circuit to consider the question—is that such a line must be drawn.”

That's a line the district court must respect unless and until the Second Circuit reverses its precedent, Failla wrote.

“In light of the EEOC's recent decision on Title VII's scope, and the demonstrated impracticality of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask—and, lest there be any doubt, this court is asking—whether that line should be erased,” she wrote. “Until it is, however, discrimination based on sexual orientation will not support a claim under Title VII.”

Courts Have Allowed Stereotyping Claims

No federal appeals court ever has ruled that Title VII covers sexual orientation. Most have ruled instead that Congress never intended the law's ban on sex discrimination to reach the distinct issue of bias based on sexual orientation.

Two federal appeals courts and a number of federal district courts have ruled gay, lesbian, transgender and bisexual workers can pursue Title VII claims if they allege bias based on sexual stereotyping.

Such claims typically allege discrimination against a male employee for appearance or behavior that's considered effeminate or against a female employee for acting too masculine. The courts reason that bias based on failure to conform with gender norms is sex discrimination under the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954 (1989).

Employee's Complaint Fell Short

But Christiansen failed to plead a claim based on sexual stereotyping “separate and apart from the stereotyping inherent” in the claimed bias based on sexual orientation, the court said. Christiansen still works for DDB Worldwide Communications Group, a subsidiary of Omnicom.

In his brief opposing dismissal of the lawsuit, Christiansen argued supervisor Joe Cianciotto “abused him because of his effeminate characteristics.”

But Christiansen's court pleadings fail to support an inference of discrimination “based on a perception that he was overly effeminate,” Failla wrote.

Instead, the alleged harassment directly targeted Christiansen's known sexual orientation, the court said.

Christiansen's complaint alleged Cianciotto told a co-worker that Christiansen was “effeminate and gay so he must have AIDS,” the court said.

But that “sole mention” of Christiansen being effeminate or otherwise “non-conforming to traditional gender norms” is insufficient to transform his discrimination claim from one based on sexual orientation into one based on sexual stereotyping, the court said.

Christiansen's complaint provides “virtually no support” for a sexual stereotyping claim, but it contains “multiple illustrations” of Cianciotto's animus against gay people, the court said. For example, Cianciotto allegedly drew and displayed pictures of men having sex; repeatedly expressed a belief that gay men were reckless and disease-prone; and he commented at a meeting that he didn't want an advertisement to be “too gay.”

“All of these examples lend further support to the inference that Cianciotto's harassment was motivated by sexual-orientation-based discriminatory animus, not sexual stereotyping,” Failla wrote.

The court “could latch onto” the complaint's single use of the word “effeminate” to “conjure up” a claim based on sexual stereotyping, Failla wrote. But “while the ends might be commendable, the means would be intellectually dishonest,” the court said.

Christiansen also alleged sexual orientation discrimination under New York State and New York City civil rights laws, breach of contract and various tort claims against Omnicom, Cianciotto and other individual defendants.

But the court said given its dismissal of Christiansen's federal law claim, it wouldn't exercise supplemental jurisdiction over the state and local law claims.

Davis & Gilbert LLP represented Omnicom and DDB Worldwide. Leeds Brown Law PC represented Cianciotto.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com