Scalia Could Help Expand LGBT Bias Protection

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Chris Opfer

If an appeals court in New York becomes the first to decide that sexual orientation discrimination is banned by current federal law, LGBT advocates may have an unlikely ally to thank: former U.S. Supreme Court Justice Antonin Scalia.

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Scalia wrote in a 1998 decision finding that an oil rig worker could sue for sexual harassment by his male co-workers. That’s the same argument that at least one judge Jan. 20 in the U.S. Court of Appeals for the Second Circuit said suggests that a ban on sex discrimination may be extended to also cover sexual orientation discrimination.

Judge Robert Katzmann repeated the Scalia passage three times over the course of 40 minutes of oral argument in a case brought by a gay creative director alleging he was routinely harassed by a supervisor. Lawyers for Matthew Christiansen and the Equal Employment Opportunity Commission asked the panel to overturn a near 17-year-old decision—in which Katzmann was also involved—finding that Title VII of the 1964 Civil Rights Act doesn’t cover sexual orientation bias ( Christiansen v. Omnicom Group, Inc., 2d Cir., No. 16-748, oral argument 1/20/17 ).

A lawyer for former Omnicom Group Inc. manager Joe Cianciotto told the court it was “disgraceful and offensive” that Congress hasn’t updated the law to prohibit sexual orientation, but he said the judges couldn’t do lawmakers’ jobs for them. An attorney representing the company steered clear of the question altogether, arguing instead that Omnicom acted swiftly in response to Christiansen’s harassment complaint and maintaining that he filed his lawsuit too late.

Scalia, whose seat has been vacant since he died last year, was known for a strict adherence to the precise words of the law that he called “textualism.” He disagreed with the majority in two of the most recent high-profile LGBT cases, in which the court struck down federal and state bans on same-sex marriage.

What to Make of Congress Inaction?

Christiansen, who still works for Omnicom, said Cianciotto openly ridiculed and taunted him shortly after Christiansen took the job with the company. Susan Chana Lask, who is representing Christiansen, told the three-judge panel that the harassment should be considered sex discrimination because he wouldn’t have been harassed if he were a woman or if he had a romantic interest in women.

Lask and EEOC attorney Barbara Sloan asked the judges to overturn the Second Circuit’s decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). In that case, the court found that Congress didn’t intend to cover sexual orientation bias when it barred sex discrimination bias more than five decades ago. Lask said that interpretation “carves out a group of people based on sexual activity.”

The Second Circuit is the latest federal appeals court to take up the question, which is widely expected to eventually land in front of the Supreme Court. The Seventh and Eleventh circuits have yet to reach decisions since hearing oral arguments in separate cases in 2016.

Lawyers for Omnicom and Cianciotto disputed Christiansen’s claims of harassment. They also said that federal law should be updated to include protections against sexual orientation bias, but Congress has not chosen to do so.

“While we believe the claims in this individual case are without merit, Omnicom supports any change in applicable federal law that would extend protections to employees on the basis of sexual orientation,” Howard Rubin, a partner at Davis & Gilbert LLP who is representing Omnicom, told Bloomberg BNA following the arguments.

The Senate in 2013 passed legislation that would have banned sexual orientation and gender identity discrimination in the workplace, but the Republican-controlled House didn’t take up the bill. A sprawling measure to prohibit the same type of bias in the workplace, as well as in housing, banking and a number of other activities, didn’t get a vote in either chamber after it was introduced two years later.

Katzmann, the Second Circuit’s chief judge, wasn’t sure how to read Congress’s inaction. “Legislators do or don’t do things for all kinds of reasons and we don’t know what they are,” he said.

Sex Stereotyping in Play

Judges Debra Ann Livingston and Margo Brodie indicated during questioning that they may be willing to sidestep the issue by focusing instead on Christiansen’s sexual stereotyping claims.

“There may be a reason within our precedent that affords your client some relief,” Livingston told Lask. She was referring to the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The justices in Price Waterhouse said sex discrimination law also bans sex-stereotyping, or discrimination or harassment against a worker because he or she doesn’t comply with traditional gender norms. The judges appeared to be inviting the argument that some forms of harassment based on sexual orientation are a type of sex-stereotyping.

The problem for LGBT advocates is that such a ruling wouldn’t necessarily grant full protection against sexual orientation discrimination in all of its various forms. They prefer a straight ban on sexual orientation discrimination without having to prove that it’s rooted in stereotyping.

“In the end, there should be no big mystery about it—there’s no ‘gay exception’ to Title VII,” Hayley Gorenberg, deputy legal director for Lambda Legal, told Bloomberg BNA. “As the EEOC made abundantly clear, if employers take sex into account in the course of discriminating, that’s sex discrimination, pure and simple.”

The judges also could decide the case on a separate timing issue. Lawyers for the company and Cianciotto said the time limit for Christiansen to file his lawsuit started when Cianciotto allegedly posted an offensive “muscle beach” poster on his Facebook page, not when Christiansen first noticed it.

To contact the reporter on this story: Chris Opfer in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at;

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law