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Sexual Orientation Discrimination Under Title VII in the 2nd Circuit: A Work in Progress

Posted on: May 11th, 2017 by Art Leonard No Comments

As the 2nd Circuit Court of Appeals ponders three petitions asking for en banc consideration of the question whether Title VII of the Civil Rights Act of 1964 can be interpreted to ban sexual orientation discrimination as a form of sex discrimination, a federal trial judge in Manhattan has ruled that “in light of the evolving state of the law,” it would be “imprudent” for the court to grant a motion to dismiss a gay plaintiff’s sexual orientation discrimination claim.

Senior District Judge Alvin K. Hellerstein, appointed by Bill Clinton in 1998, issued his ruling in Philpott v. State University of New York on May 3, the day after the third en banc petition was filed.   An en banc hearing in the 2nd Circuit involves participation by all eleven active judges in the circuit, plus any senior judges who participated in a three-judge panel decision that is being reheard en banc.  Appeals are normally heard by three-judge panels, which are bound to follow existing circuit precedents.  Only an en banc panel (or the Supreme Court) can reconsider and reverse such precedents.

The 2nd Circuit ruled in 2000, in the case of Simonton v. Runyon, that Title VII could not be interpreted to forbid sexual orientation discrimination.  This holding was reiterated by a second panel in 2005, in Dawson v. Bumble & Bumble, and yet again this year on March 27 in Christiansen v. Omnicom Group.  However, the 2nd Circuit’s Chief Judge, Robert Katzmann, who was sitting as a member of the panel in Christiansen, wrote a concurring opinion, joined by one of the other judges, arguing that the issue should be considered en banc in “an appropriate case.”  Katzmann’s discussion basically embraced the arguments articulated by the Equal Employment Opportunity Commission in its 2015 decision holding that David Baldwin, a gay air traffic controller, could bring a sexual orientation discrimination claim under Title VII against the U.S. Department of Transportation.

The first of the en banc petitions was filed on April 19 in Cargian v. Breitling USA, Inc., in which another Manhattan trial judge, George B. Daniels, dismissed a gay watch salesman’s Title VII sexual orientation discrimination claim, finding that 2nd Circuit appellate precedents binding on the court rejected sexual orientation claims as a form of sex discrimination.  Judge Daniels ruled on September 29, 2016, and Frederick Cargian filed an appeal to the 2nd Circuit.  When the Christiansen decision was issued on March 27, it became clear that Cargian’s appeal to a three-judge panel would be a waste of time and judicial resources, and the American Civil Liberties Union, representing Cargian along with the New York Civil Liberties Union and solo plaintiffs’ attorney Janice Goodman, decided to petition the Circuit to take the case up directly en banc.

The second petition was filed on April 28 by Matthew Christiansen’s attorney, Susan Chana Lask.   The three-judge panel in Christiansen’s case had refused to allow the case to continue on a sexual orientation discrimination theory, but had concluded that it was possible that Christiansen would be able to proceed under a gender stereotype theory.  The panel clarified the 2nd Circuit’s approach in such cases, rejecting the trial judge’s conclusion that if the factual allegations suggest that sexual orientation played a role in the discrimination suffered by the plaintiff, he would be not be allowed to proceed under Title VII.  The trial court’s approach overlooked an important element of Title VII, an amendment adopted in 1991 providing that a plaintiff is entitled to judgment if sex is a “motivating factor” in his or her case, even if other factors contributed to the employer’s discriminatory conduct.  The Supreme Court ruled in 1989 that discriminating against an employee because the employee fails to conform to gender stereotypes is evidence of discrimination because of sex.  In such a case, the sexual orientation of the plaintiff would be irrelevant, so long as the plaintiff could show that gender stereotyping was a motivating factor in their mistreatment.

At first it appeared that Christiansen would not seek en banc review, despite Judge Katzmann’s concurring opinion, as the panel unanimously voted to send the case back to the district court for consideration as a gender stereotyping case. Attorney Lask was quoted in newspaper reports as preparing to proceed to trial on the stereotyping theory.  The ACLU’s en banc petition changed the game plan, evidently, and Christiansen’s en banc petition was filed on April 28.

Meanwhile, on April 18, a different panel of the 2nd Circuit decided Zarda v. Altitude Express, once again holding that a gay plaintiff could not advance a sexual orientation discrimination claim under Title VII.  Gregory Antollino, an attorney for an executor of the Estate of Donald Zarda, a gay skydiving instructor who had died in a skydiving accident after the being discharged from his employment, filed a petition for en banc rehearing on May 2, with Stephen Bergstein of Bergstein & Ullrich as co-counsel representing a co-executor.

The very next day Judge Hellerstein issued his ruling, allowing Jeffrey Philpott, the gay former Vice President of Student Affairs at the State University of New York’s College of Optometry to pursue his Title VII sexual orientation discrimination, hostile environment and retaliation claims. Judge Hellerstein rejected the defendant’s alternative argument that even if sexual orientation discrimination is covered by Title VII, Philpott’s factual allegations were insufficient to support his claims.  However, Judge Hellerstein joined with several other district judges within the 2nd Circuit in ruling that an employee of an educational institution may not bring an employment discrimination claim under Title IX of the Education Amendments of 1992, which bans sex discrimination by educational institutions that receive federal money.  Although the plain language of Title IX can be interpreted to cover employment discrimination claims, Hellerstein agreed with other courts that have found that Congress did not intend to supplant Title VII, with its specific time deadlines and administrative exhaustion requirements, for employees of educational institutions who have sex discrimination claims.

After briefly describing the 2nd Circuit precedents, Hellerstein noted defendant’s argument that the court must dismiss the sexual orientation claims, and also Philpott’s request for leave to file an amended complaint focused on gender stereotyping.  “Neither relief is appropriate,” wrote the judge.  “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon.  In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.”

Hellerstein then provided a summary of Judge Katzmann’s Christiansen concurrence, which he referred to more than once as a “majority concurrence” as it was signed by two of the three panel members. Hellerstein pointed to the 7th Circuit Court of Appeals en banc decision in Hively v. Ivy Tech Community College, issued on April 4, in which “the Seventh Circuit became the first Court of Appeals to unequivocally hold that ‘discrimination on the basis of sexual orientation is a form of sex discrimination’ and therefore cognizable under Title VII.”

“Among other reasons,” wrote Hellerstein, “the Seventh Circuit made this ruling ‘to bring our law into conformity with the Supreme Court’s teachings.’ The Seventh Circuit was also compelled by ‘the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex.’”

Hellerstein asserted that because Philpott “has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial.  I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country.”

A few days after Hellerstein’s ruling, another panel of the 2nd Circuit avoided dealing with the same question in Magnusson v. County of Suffolk, an appeal from a May 2016 ruling by District Judge Sandra Feuerstein in the Eastern District of New York (Long Island).  Judge Feuerstein had rejected Arline Magnussen’s sexual orientation harassment Title VII claim on alternative grounds: that 2nd Circuit precedent does not allow sexual orientation claims, and that the employer could not be held liable under Title VII because Magnussen had unreasonably failed to invoke the employer’s internal grievance procedure to deal with her harassment complaint.  In a short memorandum signed by the Clerk of the Court, the 2nd Circuit ruled on May 11 that it need not address the Title VII interpretation issue in light of the district court’s finding that the employer could not held liable for whatever harassment the plaintiff might have suffered.

In terms of en banc review, in both Cargian and Zarda the court would face a case where the only stereotyping claim that would be viable would be that as gay men the plaintiffs did not conform to the stereotype that men should be attracted to women, so it would have to deal directly with the question whether sexual orientation is, as the EEOC stated and the 7th Circuit accepted, “necessarily” sex discrimination.  In Christiansen, the appellate panel found that the plaintiff might invoke other gender stereotype issues to make a viable claim under Title VII under the Circuit’s existing precedents, thus providing a less certain vehicle for getting the Circuit to confront the central legal issue.

If the 2nd Circuit grants the Christiansen or Cargian petitions, the en banc panel would consist of the eleven active members of the court.  If it grants the Zarda petition, those judges could be joined by two senior judges, Robert Sack and Gerard Lynch, who sat on the three-judge panel.  Of the eleven active judges, a majority were appointed by Democratic presidents: three by Clinton and four by Obama.  If the senior judges are added, a thirteen-member panel would include four appointed by Clinton and five appointed by Obama.  It is not clear from the Circuit’s published rules whether the senior judges could participate if the Circuit decides to consolidate the cases for rehearing en banc, but it is possible that they could only participate in deciding the Zarda case.

Appeals Courts Issue New LGBT-Related Rulings

Posted on: April 26th, 2017 by Art Leonard No Comments

Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

Roy Moore Loses Reinstatement Appeal before “Alabama Supreme Court”

The Alabama Supreme Court normally consists of seven justices elected by the people of the state, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal that ruling to the state’s Supreme Court, all of the other justices recused themselves. What to do?

The Supreme Court invoked a special procedure to authorize the Acting Chief Justice (who was appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Bentley (who has since resigned because of a sex scandal) to create a substitute supreme court to consider Moore’s appeal. They assembled a list of all the retired judges in the state who were deemed “capable of service,” then conducted a lottery to compile a list of fifty potential judges, with the first seven names drawn to make up this special substitute version of the court unless one or more recused themselves or were disqualified for some other reason, in which case they would go back to the list of 50 until they had a full bench.

Moore was suspended because of his activities in opposition to marriage equality. After U.S. District Judge Callie Granade ruled on January 23, 2015, that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action.  He undertook various efforts to block implementation of Judge Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.  As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.

As the marriage equality issue rose through the courts to the U.S. Supreme Court’s June 26, 2015, Obergefell v. Hodges ruling, finding a federal constitutional right for same-sex couples to marry, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the evil day when same-sex marriage might be fully accepted in Alabama. Although he recused himself from some of the Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in the court’s decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. But Moore wrote separately from the rest of the court, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.

This led to allegations that he was violating several provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.

In this appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended that he had not violated any of the judicial ethical rules. He also contended that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long: far longer than any past disciplinary suspension of any sitting judge.

The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”

This might not be the end for Moore as a “public servant,” however. Earlier in his career he had been ejected from the state supreme court for defying a federal court order to remove a 10 Commandments Monument he had installed in the lobby of the Supreme Court building.  He bided his time and eventually came back and won election to a new term as Chief Justice.  On April 26, he announced that he would enter the contest for the U.S. Senate seat that was vacated by Jeff Sessions when he became Trump’s Attorney General.  Former Governor Bentley had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election, and Strange has already announced he will be a candidate for the Republican nomination.  The deadline for candidates to qualify for the primary is May 17 and the party primaries will be held on August 15.  If no candidate wins an outright majority for the Republican nomination, a run-off will be held September 26, and the general election is December 12.

Over $600,000 Awarded to Victorious Lawyers in Texas Marriage Equality Case

In an appeal that has been pending before a panel of the 5th Circuit Court of Appeals for more than a year, the court decided to reject an attempt by Texas Governor Greg Abbott, Attorney General Ken Paxton, and Commissioner John Hellerstedt of the Department of State Health Services to win a reduction of the large attorneys’ fees and costs awarded by U.S. District Judge Orlando Garcia to the victorious attorneys who represented the plaintiffs in the Texas marriage equality case, DeLeon v. Perry (now titled DeLeon v. Abbott).

Two same-sex couples filed suit in 2013 against then-governor Rick Perry and other state officials seeking the right to marry and to win recognition of same-sex marriages performed out of state. In February 2014 Judge Garcia ruled in favor of the plaintiffs, but the decision was stayed as the state appealed to the 5th Circuit.  That court put off oral arguments until shortly before the Supreme Court announced that it would consider appeals in marriage cases from the 6th Circuit.  Then the 5th Circuit delayed ruling until after the Supreme Court announced its Obergefell decision, which made the 5th Circuit appeal purely academic.  That court quickly affirmed Judge Garcia’s decision, making the plaintiffs “prevailing parties” who were entitled to seek an award of attorneys’ fees and costs.

Judge Garcia awarded fees of $585,470.30 and costs of $20,202.90, more than $600,000 in all. In December 2015, the new line-up of official state defendants filed their appeal.  The 5th Circuit panel issued a brief opinion upholding Garcia’s award, emphasizing that the trial judge has “broad discretion” to award fees and costs if the judge “provides a concise but clear explanation for its reasons for the fee award.”    In this case, the court found that this standard had been met, but one member of the court, Circuit Judge Jennifer Walker Elrod, issued a dissent on three points.

She objected first to awarding fees for time spent opposing a motion by an anti-gay group to intervene as a co-defendant so that they could make arguments that the state was unlikely to make in defending the statute. Although the plaintiff’s lawyers were successful in beating back the intervention effort, Judge Elrod thought the state should not be required to pay them fees for doing so, since the state had not supported the intervention effort and was not the “losing party” on that issue.

She also objected to awarding fees for time that the attorneys spent “interacting with the media.” Plaintiffs’ lawyers in controversial public interest cases frequently spend time cultivating the media to win favorable coverage of the litigation and help build public support for the resulting court decision.  That was a key part of the litigation strategy in the marriage equality cases, and arguably the successful media cultivation helped to move public opinion so that the ultimate Supreme Court decision and its implementation did not arouse widespread opposition.  But Elrod argued that awarding fees for that time was “improper.”  “Plaintiffs have offered no explanation for how the media-related tasks included in the fee award were directly and intimately related to their successful representation, or were aimed at achieving their litigation goals,” she wrote.  As such, the state should not have to pay for them.

Finally, she objected to awarding fees for much of the time spent by the plaintiffs’ attorneys in recruiting and assisting various amicus curiae (so-called “friends of the court’) to file briefs supporting the plaintiffs in the case. She would have denied fees for such time on the theory, articulated by the 11th Circuit in a prior case, that because “amici are not entitled to attorneys’ fees as a ‘prevailing party,’ it would not allow this result to be changed ‘by the simple expedient of having counsel for a party do some or all of the amicus work.’’”  She would, however, agree to order the state to pay for time that plaintiffs’ attorneys spent reviewing the amicus briefs after they were filed, because the issues and arguments raised by amici might come into play during the trial or appeals of the case.  But she rejected the view that soliciting amicus parties and helping the amici to prepare their briefs was part of the work of representing the plaintiffs.  This seems the least plausible of her objections, since lawyers consider the presentation of forceful amicus briefs, carefully coordinated to avoid inconsistent arguments and assure coverage of all potential points of argument, to be an integral part of their strategy to educate the court and provide significant supplementation to the evidentiary record.  The courts of appeals and the Supreme Court have cited amicus briefs in their opinions in favor of marriage equality, showing that they are not merely peripheral window dressing in the effort to achieve the plaintiffs’ litigation goals.

Judge Elrod stated her objections in terms of concepts rather than dollar amounts, not suggesting how much she would have reduced the fee award, and the per curiam opinion does not respond to any of her arguments. The state could seek Supreme Court review, and Elrod’s partial dissent implicitly encouraged this by contending that some of the points she raised involved departures from 5th Circuit precedent or created splits between the 5th Circuit and other Circuit courts on the basis for awarding fees to prevailing parties.  The Supreme Court is rarely interested in cases about attorneys’ fees, but a circuit split in a high profile case might catch its attention.

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.

 

 

 

2nd Circuit Panel Rejects Sexual Orientation Discrimination Claim Under Title VII, but Revives Sex-Stereotyping Claim by Gay Man

Posted on: March 27th, 2017 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in Manhattan, has issued a mixed ruling concerning a gay man’s claim that he was sexually harassed in his workplace in violation of Title VII of the Civil Rights Act of 1964.  In a per curiam opinion in Christiansen v. Omnicom Group, 2017 U.S. App. LEXIS 5278, 2017 WL 1130183, the court ruled on March 27 that plaintiff Matthew Christiansen could not sue under Title VII on a claim of sexual orientation discrimination because of existing circuit precedents, but that he  could maintain his lawsuit on a claim that he was the victim of unlawful sex stereotyping by his employer.  Thus, the case was sent back to U.S. District Judge Katherine Polk Failla (S.D.N.Y.), who last year had granted the employer’s motion to dismiss all federal claims in the case and to decline to exercise jurisdiction over state law claims; see 167 F. Supp. 3d 598.

The ruling on this appeal, which was argued on January 20, was much awaited because it was the first time for the 2nd Circuit to address the sexual orientation issue since the Equal Employment Opportunity Commission (EEOC) reversed its position, held for half a century, and ruled 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 U.S. District Judge Margo K. Brodie, suggested that if the full 2nd Circuit bench, which can change a circuit precedent, were to consider the question, Katzmann and Brodie would 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 the concurring opinion.

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 that 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 in New York was much in the news as the legislature prepared to vote upon and pass the marriage equality bill.  The supervisor, who is 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.”  The supervisor made other references to AIDS in connection with Christiansen, although at the time Christiansen was keeping his HIV-status private.  Christiansen included a disability discrimination claim in his complaint, but the district court found that his factual allegations were not sufficient to maintain a claim under the Americans with Disabilities Act, a conclusion that Christiansen did not appeal.

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

The state of precedent in the 2nd Circuit has frequently been questioned by federal trial courts in the circuit as confusing and difficult to apply.  The Circuit has ruled that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), an employee, including a gay or lesbian employee, 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.  These precedents date from 2000 (Simonton v. Runyon, 232 F.3d 33) and 2005 (Dawson v. Bumble & Bumble, 398 F.3d 211).  They predate the Supreme Court’s decisions striking down the Defense of Marriage Act (U.S. v. Windsor, 133 S.Ct. 2675) and state bans on same-sex marriage (Obergefell v. Windsor, 135 S. Ct. 2584), as well as the EEOC’s 2015 ruling recognizing sexual orientation discrimination claims under Title VII.  While none of these later rulings produced a precedent binding on the 2nd Circuit that sexual orientation claims are covered under Title VII, they have “changed the landscape,” as Judge Katzmann wrote in his concurring opinion.

The per curiam opinion premised its holding squarely on the rule that circuit precedents can only be revised or reversed by the Supreme Court or the full circuit bench sitting en banc. Thus, the panel ruled that it was precluded from reconsidering Simonton and Dawson.

However, 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. The panel pointed out that the 2nd Circuit has never ruled that gay people may not sue under Title VII when they have substantial evidence of gender stereotyping to present, provided that such evidence is not limited to the argument that sexual orientation discrimination is itself a form of sex stereotyping.  That is, the Title VII claim may not based, under current circuit precedent, on the argument that men loving men and women loving men is a violation of gender stereotypes in and of itself.  In this case, the panel wrote that there were enough allegations of gender stereotyping as such to survive the employer’s motion to dismiss.

“The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation.” But the court pointed out that Christiansen’s burden at this initial stage of the litigation was not to show that he would prevail at later stages. Rather, it was enough for him to “state a claim that is plausible on its face” that he was subjected to harassment because of non-conformity to male gender stereotypes.

Judge Katzmann noted in his concurrence that because Christiansen was also alleging violations of state and local laws forbidding sexual orientation discrimination as well as a violation of Title VII, it was to be expected that his factual allegations would cover both kinds of claims. While joining in the per curiam opinion, Judge Katzmann wrote separately to express his view “that when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.”

He went on to identify three theories under which sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII, drawing heavily on the EEOC’s 2015 decision. First, he wrote, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.”  The EEOC has observed, he wrote, that “sexual orientation ‘cannot be defined or understood without reference to sex,’ because sexual orientation is defined by whether a person is attracted to people of the same sex or opposite sex (or both, or neither).”  Thus, according to the EEOC, “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The second theory follows a 2nd Circuit ruling from 2008, Holcomb v. Iona College, 521 F.3d 130 (2008), where the circuit formally embraced the associational discrimination theory that other courts have applied in race discrimination cases.  If an employee suffers discrimination because he is involved in an interracial relationship, the courts will recognize his claim of race discrimination in violation of Title VII.  By analogy, discriminating against an employee because of a same-sex relationship is quite simply sex discrimination.  In Price Waterhouse, the Supreme Court had commented that Title VII “on its face treats each of the enumerated categories exactly the same.”  Thus, if employees in interracial relationships are protected from race discrimination, then employees in same-sex relationships should be protected from sex discrimination.

Finally, of course, there is gender stereotyping, including the kind of stereotyping that the 2nd Circuit has not yet accepted as violating Title VII, the stereotype that men should be attracted only to women and women only to men.  “Relying on common sense and intuition rather than any ‘special training,’” wrote Katzmann, “courts have explained that sexual orientation discrimination ‘is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.  In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.’”  Katzmann noted that the circuit in Dawson had pointed out that “stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  He continued, “Having conceded this, it is logically untenable for us to insist that this particular gender stereotype is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse,” and concluded that this particular stereotype about sexual attraction is “as clear a gender stereotype as any.”

At the same time, he rejected the argument, raised by some courts, that because Congress has been considering unsuccessful efforts to pass a federal ban on sexual orientation discrimination since the 1970s, the courts are precluded through interpreting Title VII to ban such discrimination. When the circuit decided Simonton in 2000, it reached the same conclusion that all other federal circuit courts had then reached on this issue.  “But in the years since,” he wrote, “the legal landscape has substantially changed,” citing Lawrence v. Texas, 539 U.S. 558 (the sodomy law case) and Obergefell v. Hodges (the marriage equality case), “affording greater legal protection to gay, lesbian, and bisexual individuals.  During the same period,” he observed, “societal understanding of same-sex relationships has evolved considerably.”  Thus, he wrote, despite the failed legislative proposals, there is “no justification in the statutory language for a categorical rule” excluding sexual orientation claims.

“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 7th Circuit, where the full bench heard argument on November 30 on this question, and the 11th Circuit, 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 panel case argued in January in the 2nd Circuit, although the circuit rule on precedent will likely produce the same result in that case, which does not include a separate gender non-conformity allegation.

Christiansen is represented by Susan Chana Lask, a New York attorney whose Complaint in this case 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 the stereotyping theory, the plaintiff need not seek full circuit en banc review to proceed and seek discovery to produce evidence in support of his claim.

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 ACLU, 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.

Federal Court in NYC Dismisses Sexual Orientation Discrimination Claim under Title VII

Posted on: March 10th, 2016 by Art Leonard No Comments

In 2000, the U.S. Court of Appeals for the 2nd Circuit, which has appellate jurisdiction over cases in the federal trial courts in New York, rejected the argument that sexual orientation discrimination claims could be dealt with as sex discrimination claims under federal law, but was open to the possibility that a gay litigant who had suffered discrimination because of failure to conform with the employer’s stereotypical views of appropriate gender behavior could pursue such a claim.  On March 9, a gay litigant informed the 2nd Circuit that he will appeal a Manhattan trial court’s dismissal of his federal sexual orientation claim, joining the trial judge in urging the appeals court to reconsider its 2000 decision.

Since the 2nd Circuit decided Simonton v. Runyon, 232 F.3d 33 (2000), the law affecting LGBT rights has drastically changed.  In 2003, the Supreme Court ruled that gay sex between consenting adults could no longer be outlawed.  In 2002, New York State joined New York City in outlawing sexual orientation discrimination in employment, housing and public accommodations, and the next year New York City extended the local law to gender identity discrimination claims.  In 2009 the federal government added sexual orientation and gender identity to the national Hate Crimes Law, and subsequently repealed the “don’t ask, don’t tell” anti-gay military policy.   In 2011 New York passed a Marriage Equality Act, in 2013 the Supreme Court ruled that the federal government must recognize same-sex marriages formed under state law, and last year the Supreme Court ruled that same-sex couples are entitled to marry and have their marriages recognized by state governments everywhere in the country.

Through all this change, however, the principal federal anti-discrimination law, the Civil Rights Act of 1964, has never been amended to extend explicit protection against discrimination to LGBT people. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, the employment provisions of the Civil Rights Act, has interpreted the federal ban on sex discrimination as extending to gender identity and sexual orientation discrimination, but federal courts are not bound by that interpretation, and federal trial judges have differed about how to handle sexual orientation discrimination claims.  So far, no federal appeals court has ruled on the question since the EEOC issued its decision last summer, but cases are pending on appeal in several circuits.

On March 9, U.S. District Judge Katherine Polk Failla, ruling on an employer’s motion to dismiss a Title VII claim filed by a gay man in Christiansen v. Omnicom Group, 2016 U.S. Dist. LEXIS 29972, found that his attempt to squeeze the case into the sex stereotype theory was unsuccessful and dismissed his claim, concluding that she was bound by the 2nd Circuit precedent to reject a sexual orientation discrimination claim under Title VII.  Reviewing the facts alleged by Matthew Christiansen against Omnicom Group (the parent company) and DDB Worldwide Communications (the business by which he is employed in New York), the judge found that all but one of the incidents he described in his complaint related to sexual orientation.

Indeed, Christiansen’s allegations clearly state that his supervisor, Joe Cianciotto, was “openly resentful and hostile toward Plaintiff because of his sexual orientation.” The various incidents of harassment that Christiansen described in his complaint all involved Cianciotto’s expression of such hostility in some form.  Only once did he refer to Christiansen as “effeminate,” which might have supported a sex stereotype claim, but most of the time Cianciotto’s razzing focused on Christiansen’s “big muscles” (as described by Cianciotto), pictorial invocations of exaggerated masculinity, and references to gay stereotypes.

Judge Failla focused on the difficulty of distinguishing between sexual orientation and sex stereotyping claims, quoting from several other court decisions illustrating that difficulty, and warning against using passing stereotypical references by a supervisor to “shoehorn” a sexual orientation claim into Title VII coverage.

“The lesson imparted by the body of Title VII litigation concerning sexual orientation discrimination and sexual stereotyping seems to be that no coherent line can be drawn between these two sorts of claims,” she wrote. “Yet the prevailing law in this Circuit – and, indeed, every Circuit to consider the question – is that such a line must be drawn.  Simonton is still good law, and, as such, this Court is bound by its dictates.  Consequently, the Court must consider whether the Plaintiff has pleaded a claim based on sexual stereotyping, separate and apart from the stereotyping inherent in his claim for discrimination based on sexual orientation.  The Court finds that he has not.”

Christiansen’s complaint alleges that Ciancotto told a coworker that Christiansen was “effeminate and gay so he must have AIDS,” but this was not enough for Judge Failla. “This is the sole mention of Plaintiff as effeminate or otherwise non-conforming to traditional gender norms in the whole of the [first amended complaint],” she wrote.  “It alone cannot serve to transform a claim for discrimination that Plaintiff plainly interpreted – and the facts support – as stemming from sexual orientation animus into one for sexual stereotyping.  While Plaintiff provides virtually no support in his [complaint] for an allegation of discrimination based on sexual stereotyping, he provides multiple illustrations of Cianciotto’s animus toward gay individuals.  The [complaint] notes, for instance, the fact that ‘most of the pictures Cianciotto drew were of men fornicating, and they always involved a gay employee’; that he repeatedly expressed a belief that gay men were reckless and disease-prone; and that he commented at a meeting that he did not want an advertisement to be ‘too gay.’  All of these examples lend further support to the inference that Cianciotto’s harassment was motivated by sexual-orientation-based discriminatory animus, not sexual stereotyping.”

Failla conceded that she might be able to “latch onto the single use of the word ‘effeminate’ and the depiction of Plaintiff’s head on a woman’s body, strip these facts of the context provided by the rest of the [complaint], and conjure up a claim for ‘sexual stereotyping.’ But while the ends might be commendable, the means would be intellectually dishonest; the Court would obliterate the line the Second Circuit has drawn, rightly or wrongly, between sexual orientation and sex-based claims.  In light of the EEOC’s recent decision on Title VII’s scope, and the demonstrated impracticability of considering sexual orientation discrimination as categorically different from sexual stereotyping, one might reasonably ask – and, lest there by any doubt, this Court is asking – whether that line should be erased.  Until 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.”

Reading Christiansen’s factual allegations, one would have to be amazed that a supervisor behaving the way Joe Cianciotto is alleged to have behaved would be tolerated by a socially conscious employer in New York, much less a large advertising agency. As far as society has advanced over the past few decades in treating gay people with simple human dignity, the facts one reads in employment discrimination complaints filed by LGBT suggest that there is still a long way to go.

Christiansen, who is HIV-positive, also asserted an Americans With Disabilities Act claim, but Judge Failla found it was not timely, since the only incident on point occurred more than 300 days before Christiansen filed his charge with the EEOC, and in that charge he didn’t even mention the ADA. She also found that his factual allegations would not support a claim under the ADA in any event, since there was scant evidence that he was mistreated by the company because of his HIV status, and that the facts also did not support his claim to have suffered retaliation for filing his discrimination charges.  His complaint asserted a “constructive discharge” claim, which he had to withdraw since he was still working for the company when the complaint was filed

However, it is a fair inference from Judge Failla’s characterization of the evidence that if she felt Title VII could be construed to cover sexual orientation discrimination, she would not have granted the motion to dismiss. She also granted a motion to dismiss filed on behalf of various supervisory and managerial officials of the employer, as the federal anti-discrimination laws do not pose personal liability on company officials.  Having dismissed all the federal statutory claims that Christiansen made, the judge declined to extend jurisdiction over his state law claims, so he should be able to pursue his case further in state court, where the statutes do expressly forbid sexual orientation discrimination.

In the meantime, however, Christiansen’s reaction to the March 9 dismissal was immediate, as his attorney filed a notice of appeal with the 2nd Circuit the same day.  Little more than a week earlier, the EEOC had advanced its campaign to win judicial acceptance of the agency’s interpretation of Title VII by filing its first affirmative sexual orientation discrimination claims against employers in other parts of the country.  The EEOC had already intervened as a co-plaintiff in several other pending cases since last year’s administrative ruling.

Christiansen is represented by Susan Chana Lask, a New York City trial lawyer.