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Gay worker can pursue stereotyping claim under Title VII: 2nd Circuit

Gay worker can pursue stereotyping claim under Title VII: 2nd Circuit

In a long-awaited ruling, the 2nd U.S. Circuit Court of Appeals in New York has held that a gay worker can pursue his discrimination claim under Title VII of the Civil Rights Act of 1964, but not on the basis that some observers had predicted.

A three- judge panel held in Monday’s ruling in Anonymous, Matthew Christiansen v. Unicom Group et al. that Mr. Christiansen can pursue his Title VII claim on the basis of sexual stereotyping, not gender orientation.

Mr. Christensen had filed suit against his employer, New York-based DDB Worldwide Communications Group Inc., a unit of Omnicom, charging harassment by a supervisor in violation of Title VII, among other charges.

In her March 2016 ruling granting Omnicom summary judgment dismissing the case, U.S. District Court Judge Kathryn Failla in New York cited the 2nd Circuit’s 2000 ruling in Simonton v. Runyon in which the court “unequivocally held that ‘Title VII does not proscribe discrimination because of sexual orientation.”

In June 2016, 23 senators and 105 representatives, all Democrats, filed an amicus brief in the case urging the court to rule that Title VII prohibits discrimination based on an individual’s sexual orientation.

But the focus of the ruling was gender stereotyping, not sexual orientation. The appellate court’s ruling cited the 1989’s U.S. Supreme Court ruling in Price Waterhouse v. Hopkins, in which it held a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred.

“Christensen’s complaint identifies multiple instances of gender stereotyping discrimination,” including his complaint that his supervisor described him as “effeminate” to others in the office and depicted him in tights and a low-cut shirt “prancing around,” said the ruling.

“The District Court’s decision draws attention to some confusion in our Circuit about the relationship between gender stereotyping and sexual orientation discrimination claims,” said the ruling.

“While Simonton observed that the gender stereotyping theory articulated in Price Waterhouse ‘would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine,’ it acknowledged that, at a minimum, ‘stereotypically feminine’ gay men could pursue a gender stereotyping claim under Title VII (and the same principle would apply to ‘stereotypically masculine’ lesbian women).”

“The gender stereotyping allegations in Christiansen’s complaint are cognizable under Price Waterhouse and our precedents,” said the ruling, in overturning the lower court decision and remanding the case for further proceedings.

A concurring opinion supported by two of the three judges states, “I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling this question, and it well may be that the Supreme Court will ultimately address it.”

Meanwhile, oral arguments were held in November by the en banc 7th U.S. Circuit Court of Appeals in Chicago in Kimberly J. Hively v. Ivy Tech Community College, in which a lesbian instructor claimed discrimination because of her sexual orientation. 

A three-judge panel had said in a July 28 ruling that it was obligated to affirm a lower court ruling that Ms. Hively’s claim was beyond the statute’s scope; but in what was described as a rare move, the 7th Circuit in October decided to vacate that ruling and rehear the case en banc. 

Earlier this month, in a divided ruling, the 11th U.S. Circuit Court of Appeals in Atlanta said Title VII does not protect employees from discrimination on the basis of sexual orientation.


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