Second Circuit Bounces Sexual Orientation Bias Claim

A three-judge panel of the US Second Circuit Court of Appeals, based in Manhattan, has issued a mixed ruling concerning a gay man’s claim he was sexually harassed in his workplace in violation of Title VII of the 1964 Civil Rights Act. In an unsigned March 27 opinion, the court ruled that plaintiff Matthew Christiansen could not sue under Title VII on a sexual orientation discrimination claim because of existing circuit precedents, but that he could maintain his suit on a claim he was victim of his employer’s unlawful sex stereotyping. The case was sent back to US District Judge Katherine Polk Failla of New York’s Southern District, who last year granted the employer’s motion to dismiss all federal claims and decline jurisdiction over state law claims.

The ruling on this appeal, argued on January 20, was much awaited because it was the first time for the Second Circuit to address the sexual orientation issue since the federal Equal Employment Opportunity Commission (EEOC) reversed its position, held for half a century, ruling in 2015 that sexual orientation discrimination claims should be treated as sex discrimination claims subject to Title VII, which prohibits discrimination “because of sex.”

In a separate concurring opinion, Chief Judge Robert Katzmann, joined by US District Judge Margo K. Brodie, suggested that if the full Second Circuit bench – which can change a circuit precedent – were to consider the question, they would both find that sexual orientation discrimination claims can be litigated under Title VII. The other member of the panel, Circuit Judge Debra Ann Livingston, did not join that opinion.

Manhattan panel cites precedent, but allows case to proceed on sex-stereotyping theory

Christiansen, described in the opinion as “an openly gay man who is HIV-positive,” worked at DDB Worldwide Communications Group, an advertising agency based in New York that is a subsidiary of Omnicom Group. He alleged his direct supervisor subjected him to humiliating harassment “targeting his effeminacy and sexual orientation.” This began in the spring and summer of 2011, a time when marriage equality, on the cusp of victory in Albany, was much in the news in New York. The supervisor, not named in the opinion, “drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard.” These graphic drawings “depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality.’”

There was another picture that “depicted Christiansen in tights and a low-cut shirt ‘prancing around.’” Yet another showed his “torso on the body of ‘a four legged animal with a tail and penis, urinating and defecating.’” Later in 2011, the same supervisor “circulated at work and posted to Facebook a ‘Muscle Beach Party’ poster that depicted various employees’ heads on the bodies of people in beach attire,” including Christiansen’s head “attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

The supervisor also made remarks about “the connection between effeminacy, sexual orientation, and HIV status,” and allegedly told other employees that Christiansen “was effeminate and gay so he must have AIDS,” though at the time Christiansen was keeping his HIV-status private. Christiansen included a disability discrimination claim in his complaint, but the district court found his factual allegations were not sufficient to maintain a claim under the Americans with Disabilities Act (ADA), a conclusion that Christiansen did not appeal.

Christiansen filed a complaint with the EEOC in 2014, describing the harassment in detail, and after receiving the agency’s notice of right to sue, filed his lawsuit in Manhattan federal court. Omnicom quickly moved to dismiss. In addition to his Title VII and ADA claims, he also alleged violations of New York State and city anti-discrimination laws. The employer argued his claim under Title VII was really a sexual orientation discrimination claim rather than a gender stereotyping claim, and Failla, the district judge, agreed.

Federal trial courts in the Second Circuit have frequently questioned the relevant precedent as confusing and difficult to apply. The circuit has ruled that, under the Supreme Court’s 1989 decision in a woman’s suit against Price Waterhouse for its failure to make her a partner because she was viewed as insufficiently feminine, that an employee, including a gay or lesbian one, can bring a sex discrimination claim involving sex stereotyping, but if the court perceives that the employer’s mistreatment of the employee was really due to the employee’s sexual orientation, the claim will be rejected.

Though this week’s ruling was premised on the rule that existing circuit precedent can only be overturned by the full circuit or the Supreme Court, the panel disagreed with Judge Failla’s conclusion that there was too much about sexual orientation in Christiansen’s complaint to allow him to proceed with a gender stereotyping sex discrimination claim under Title VII. Instead, the panel wrote there were enough allegations of gender stereotyping to survive the employer’s motion to dismiss.

In his concurrence, Katzmann pointed to three theories under which sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII: (1) that “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex,” given that, as the EEOC has noted, “sexual orientation ‘cannot be defined or understood without reference to sex’”; (2) based on the associational discrimination theory that other courts have applied in race discrimination cases, under which an employee suffers discrimination because he is involved in an interracial relationship; and (3) if there was gender stereotyping, including stereotyping the Second Circuit has not accepted as violating Title VII — that men should be attracted only to women and women only to men.

Katzmann concluded, “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 with this question, and it well may be that the Supreme Court will ultimately address it.”

The other cases are in the Seventh Circuit in Chicago, where the full bench heard argument on November 30 on this question, and the 11th Circuit in Atlanta, where a petition for en banc review is being filed by Lambda seeking reversal of a 2-1 adverse panel decision issued a few weeks ago. There is also another Second Circuit panel case argued in January, but the circuit’s precedent will likely produce the same result there.

Christiansen is represented by Susan Chana Lask, a New York attorney whose complaint originally cast the federal claim as a sex stereotyping claim. Now that the case is being sent back to the district court to be litigated on that theory, Christiansen need not seek full circuit en banc review to proceed.

The case attracted widespread amicus participation, including a brief filed by the EEOC, another from a long list of civil rights organizations led by the American Civil Liberties Union, and briefs on behalf of 128 members of Congress, the National Center for Lesbian Rights, and Lambda Legal, all arguing that the court should allow the case to proceed as a sexual orientation discrimination case.