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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