Q: Plaintiff,
a gay employee, sues his employer under Title VII for discrimination citing
numerous examples of his supervisor’s anti-gay behavior including (i) a movie
poster, circulated to the office and posted on Facebook by the supervisor,
depicting Plaintiff’s head superimposed on the body of a bikini-clad woman
reclining on her back with her legs in the air which the supervisor describes
as “the gay sexual receiving position”; (ii) drawings put on a company
whiteboard by the supervisor, one of which showed Plaintiff’s torso on the body
of a four-legged animal with a tail and penis, urinating and defecating, and a
second drawing which depicted the Plaintiff naked, with an erection and
exaggerated muscles, and an air pump being manned by another employee and
attached to Plaintiff’s wrist, with text next to Plaintiff reading “I’m so
pumped for marriage equality,” while text by the other employee says, “I f*#ing
hate being pumped”; (iii) a comment made to a co-worker in which the supervisor
stated that “if he were gay, he’d like to have gay intercourse with [the co-worker]”;
(iv) the supervisor asked another employee during an office trivia game how it
felt to “be beaten out by the gay guy”; and (v) during a large office meeting,
when the supervisor was feeling ill, he turned to the Plaintiff and said “It
feels like I have AIDS, you know what that’s like?” Does the Plaintiff have a cognizable claim for
discrimination under Title VII?
A: NO. Plaintiff alleged each of these facts in his
lawsuit Christiansen v. Omnicom Group, Inc. The United States District Court for the
Southern District of New York (which is a lower court within the federal Second
Circuit courts that covers NYC) dismissed Plaintiff’s Title VII discrimination
claims.
While the Christiansen
Court described the conduct alleged as “reprehensible”, it was “constrained to
find that Plaintiff has not stated a cognizable claim for Title VII
discrimination” because the Second Circuit Court of Appeals (the highest court
in the Second Circuit) decided several years ago (in a case called Simonton
v. Runyon) that Title VII does not prohibit discrimination because of
sexual orientation.
In obvious
frustration, the Christiansen Court made its case that the Second
Circuit Court of Appeals should reconsider the issue. It noted that the broader
legal landscape has significantly changed since Simonton was decided,
citing the U.S. Supreme Court’s 2013 opinion striking down the Defense of
Marriage Act and the Supreme Court’s 2015 decision that, under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have
the right to marry. The Christiansen Court stated that these cases
“reflect a shift in the perception, both of society and of the courts,
regarding the protections warranted for same-sex relationships and the men and
women who engage in them.”
The Christiansen
Court also pointed out that in July 2015 the EEOC issued a decision, binding on
federal agencies (though not federal courts), finding that claims for sexual
orientation discrimination are cognizable under Title VII. The Christiansen
Court then posed the very questions I set forth in my first two Q&As above,
in an effort to “illustrate the futility of treating sexual orientation
discrimination as separate from sex-based considerations.”
The Christiansen
Court then questioned whether the line the Second Circuit Court of Appeals has
drawn between sexual orientation and sex-based claims “should be erased”, but
concluded that “[u]ntil it is, however, discrimination based on sexual
orientation will not support a claim under Title VII; Plaintiff’s Title VII
discrimination claim must therefore be dismissed.”
Plaintiff
filed his Notice of Appeal on March 9, 2016.
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