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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the federal government added sexual orientation and gender identity to the national Hate Crimes Law, and subsequently repealed the “don’t ask, don’t tell” anti-gay military policy.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.

 

Federal Magistrate Refuses to Dismiss Gay Pilot’s Title VII Sex Discrimination Claim

Posted on: May 25th, 2015 by Art Leonard No Comments

U.S. Magistrate Judge Michael E. Hegarty refused to dismiss a claim by a gay airline pilot that his former employer discriminated against him in violation of Title VII of the Civil Rights Act of 1964 by misrepresenting the reason for his discharge, thus making him virtually “unemployable” in the industry.  Judge Hegarty’s May 11 ruling in Deneffe v. Skywest, Inc., 2015 U.S. Dist. LEXIS 62019, 2015 WL 2265373 (D. Colo.), appears to mark a further extension of the “gender stereotyping” theory under which federal courts have begun to find protection against discrimination for gay plaintiffs under Title VII’s ban on sex discrimination.

When Congress passed the Civil Rights Act in 1964, the House approved a floor amendment to add discrimination because of “sex” to the list of forbidden grounds of discrimination covered by the bill and the Senate acquiesced.  Because it was added as a floor amendment and there was no extended debate, there is little in the legislative history to indicate what Congress intended to cover by adding “sex,” and during the early years of the law, both the Equal Employment Opportunity Commission and the federal courts concluded that Congress did not intend to forbid discrimination because of sexual orientation or gender identity.

This narrow view of sex discrimination began to erode in 1989, when the Supreme Court accepted the argument that discriminating against a person because of their failure to conform to “sex stereotypes”  could be a violation of Title VII.  In Price Waterhouse v. Hopkins, Justice William J. Brennan wrote for a plurality of the Court that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” and he wrote, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  Justice Brennan also used the word “gender” several times in the opinion when referring to the forbidden grounds of discrimination under Title VII.

Taking their cue from this decision, some lower federal courts began to reconsider the earlier view that Title VII could not be construed to protect gay or transgender people from employment discrimination, at least in cases where it was plausible to claim that they suffered discrimination because of failure to comply with gender stereotypes.   Within the past few years, federal appeals courts have ruled that transgender plaintiffs could bring claims under both Title VII and the Equal Protection Clause, and the EEOC changed its position, at least regarding transgender discrimination claims, just a few years ago.  This evolving view has been slower to endorse sex discrimination claims by gay employees, but Judge Hegarty’s May 11 ruling adopts an interesting theory.

In his amended complaint, wrote Hegarty, Federic  Deneffe asserted that during many flights he piloted, “other pilots jokingly insinuated that male flight attendants were homosexual, referring to them by the nickname of ‘Susie.’  Deneffe once heard another pilot refer to male flight attendants as ‘the little faggots who bring us our coffee.’  Other male pilots also commented, ‘I am not getting laid this trip,’ and ‘I will make sure I double lock my room,’ when only male attendants were on a flight.  Male pilots frequently made disparaging remarks about openly gay men in general, with comments such as ‘Freddie Mercury was so talented, it’s such a shame he’s gay.’”

Deneffe also alleged that “male pilots regularly engaged in banter about their heterosexual exploits.  At least one pilot sent Deneffe text messages detailing his sexual exploits with a woman.  Deneffe was conspicuously silent when his co-workers discussed their sexual activities with women, made homosexual jokes, or talked about their wives and children.’”  Deneffe listed his same-sex partner as the beneficiary for his flight privileges with the airline when he was hired, and took one or two trips a month with his partner.  He claimed that other pilots regularly saw him and his partner at the airport and on flights together, and that he had talked about his sexual orientation with a female pilot, who happened to be openly lesbian (and who made some adverse comments about Deneffe on an evaluation form).

Deneffe was astonished by his sudden termination, because he had passed a satisfactory review and had never been in an accident.  His attempt to ascertain the reason for his discharge was unsuccessful, but when he applied to other airlines and authorized SkyWest to release his employee records as required by regulations, he was stunned to learn that the SkyWest form stated “Performance/Inability” and indicated he was “Ineligible for Rehire.”   He was unsuccessful in gaining employment as a pilot, and was told by one airline recruiter that “with a termination like that, we’re not to take you” or words to that effect.

He sued under both Title VII and the Age Discrimination Act, but suffered dismissal of his discrimination claim regarding the discharge for reasons not mentioned in Judge Hegarty’s  May 11 decision.  However, the judge allowed him to file an amended complaint based on the statements in the employee records.  SkyWest moved to dismiss the amended complaint, arguing that sexual orientation discrimination is not covered under Title VII and that the ban on employment discrimination would not extend to this situation in any event.

Judge Hegarty rejected both of SkyWest’s arguments.

Although the judge acknowledged that the 10th Circuit Court of Appeals, whose precedents would bind him, “has not recognized a Title VII claim for discrimination based on sexual orientation,” he found that “Deneffe’s Title VII claim is premised on Deneffe’s failure to conform to gender stereotypes,” a theory that had been recognized by the 10th Circuit in a case brought by a transgender plaintiff.

SkyWest argued that the complaint failed to state how Deneffe did not  conform to male stereotypes.

“Deneffe counters that the following allegations support his claim,” wrote Hegarty. “(1) He did not take part in male braggodicio [sic] about sexual exploits with women as the other male pilots did; (2) he did not joke about gays as other male pilots did, (3) he submitted paperwork to SkyWest designating his male domestic partner for flight privileges, a benefit offered only for family members and domestic partners, and (4) he traveled on SkyWest flights with his domestic partner.  The Court finds that these alleged facts, together with Deneffe’s allegation that the conduct by other male pilots was ‘regular,’ ‘frequent,’ and occurred during ‘many’ flights, suffice to state a plausible claim that the chief pilot submitted a negative PRIA employment reference based on Deneffe’s failure to conform to male stereotypes.”

In other words, Deneffe’s aloofness from the other pilots’ macho banter could be considered, together with the actions he took revealing his sexual orientation and the other pilots’ homophobic comments about flight attendants, as a form of gender stereotype nonconformity sufficient to get him past a motion to dismiss his Title VII claim.

Hegarty also found precedents supporting the claim that adverse job references can be considered a form of employment discrimination under Title VII.   He pointed to a prior 10th Circuit ruling that “an act by an employer that does more than de minimis harm to a plaintiff’s future employment prospects can, when fully considering the unique factors relevant to the situation at hand, be regarded as an adverse employment action, even where plaintiff does not show the act precluded a particular employment prospect.”

Hegarty wrote that “determining a harmful, negative employment reference to be an adverse employment action is consistent with the substantive provisions of Title VII.  Certainly, a negative employment reference could adversely affect an individual’s conditions or privileges of employment and/or deprive an individual of employment opportunities.”  It is not necessary that somebody still have the status of an employee at the time when the adverse effect occurs, he concluded, finding that “the alleged adverse action by SkyWest of submitting PRIA forms (after Deneffe’s termination of employment) containing negative employment information that is distributed to potential employers” was sufficient to ground a discrimination complaint under Title VII.

Deneffe is represented by Rosemary Orsini of Berenbaum Weinshienk PC (Denver) and Subhashini Bollini of the Employment Law Group (Washington, D.C.).

Is ENDA Necessary? Or Will Title VII of the Civil Rights Act of 1964 Take Care of LGBT Discrimination

Posted on: April 4th, 2014 by Art Leonard No Comments

One of the major legislative goals of the LGBT rights movement is to get Congress to pass the Employment Non-Discrimination Act (ENDA), a measure that has been pending in Congress in one form or another since 1996 (with predecessor “gay rights” bills having been introduced since the mid-1970s). ENDA would prohibit employment discrimination because of a person’s sexual orientation, gender identity or expression, but would prohibit only intentional discrimination, not employer practices that are neutral on their face but have the effect of discriminating. It is narrowly drafted legislation, and has a big religious exemption that is controversial. And, although the current version was passed by a comfortable majority in the Senate last year, the Republican leadership in the House has refused to hold hearings or schedule a vote, and strategy for a “discharge petition” (a procedural floor vote to get the bill released from Committee and onto the floor for a vote on enactment) is at an early stage.

But what if ENDA is not needed? What if existing law already bans such discrimination? In 1964, Congress passed the Civil Rights Act, whose Title VII bans employment discrimination because of sex. For a long time, both the Equal Employment Opportunity Commission (EEOC) and the federal courts have ruled that discrimination against LGBT people is not prohibited, because in 1964 Congress did not intend to forbid such discrimination. In effect, Title VII was limited to cases where people were suffering discrimination because they are a man or a woman.

But the Supreme Court came to view “sex discrimination” more broadly, ruling in one case that a woman who suffered discrimination because she failed to conform to gender stereotypes (“too butch”) was a victim of sex discrimination, and in another case that a man who encountered a hostile environment in an all-male workplace (treated by his rougher, tougher co-workers as a sex toy) might also have a valid claim under Title VII. The EEOC and some lower federal courts have taken the next step in recent years, holding that discrimination because of gender identity is a kind of sex discrimination, because it is inspired by discomfort or disapproval with people defying conventional gender roles. There is a recent EEOC formal opinion to that effect, and a growing body of federal court decisions support this view.

But what about lesbians, gay men or bisexuals who are not gender-nonconforming in their appearance or conduct, but who encounter discrimination simply because their employer, co-workers or customers are biased against gay people? Before March 31, there were no court opinions suggesting that such a person might be protected from discrimination under Title VII, although some law review commentators had made the argument. On March 31, however, U.S. District Judge Colleen Kollar-Kotelly made history by issuing her opinion in Peter J. Terveer v. James H. Billington, Librarian, Library of Congress, 2014 Westlaw 1280301, 2014 U.S. Dist. LEXIS 43193 (U.S. District Ct., Dist. Columbia), holding that a man who suffered adverse treatment at the hands of an anti-gay supervisor could maintain a claim under Title VII, even though his only gender non-conforming characteristic is his sexual orientation.

According to the court’s opinion, Mr. Terveer was hired in February 2008 to be a Management Analyst in the Auditing Division of the Library of Congress. His first-level supervisor, John Mech, is described in the opinion as “a religious man who was accustomed to making his faith known in the workplace.” According to Terveer’s complaint, Mech said to him on June 24, 2009, that “putting you closer to God is my effort to encourage you to save your worldly behind.” According to the complaint, Terveer became close to Mech and Mech’s family, including his daughter. “In August 2009, Mech’s daughter learned that Plaintiff is homosexual,” wrote Judge Kollar-Kotelly. “Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline ‘Diversity: Let’s Celebrate It.'”

Things went downhill from there. According to the complaint, Mech subjected Terveer to “work-related conversation to the point where it became clear that Mech was targeting Terveer by imposing his conservative Catholic beliefs on Terveer throughout the workday.” Terveer claimed that Mech stopped giving him detailed instructions with his assignments, instead making ambiguous assignments that, in effect, set up Terveer to fail, and assignments that were clearly beyond Terveer’s experience level. Terveer claims he was given one huge assignment that would normally require the attention of half a dozen employees, and then Mech piled additional work on top of that.

Terveer alleged that on June 21, 2010, Mech called an unscheduled meeting that lasted more than an hour, “for the purpose of ‘educating’ Terveer on Hell and that it is a sin to be a homosexual, that homosexuality was wrong, and that Terveer would be going to Hell.” Mech recited Bible verses to Terveer and told him, “I hope you repent because the Bible is very clear about what God does to homosexuals.” A few days later, Terveer received his annual review from Mech, and felt it did not reflect the quality of his work. Terveer believed that the review “was motivated by Mech’s religious beliefs and sexual stereotyping.” Terveer confronted Mech about this unfair treatment, which got Mech angry, vehemently denying that he was partial, and he accused Terveer of trying to “bring down the library.”

Terveer next went to Mech’s supervisor and told him about what was happening. According to Mech’s account of that meeting with Nicholas Christopher, Christopher told him that, in his opinion, “employees do not have rights,” and Christopher took no action to remedy the problem or advise Terveer about appropriate complaint procedures. According to Terveer, Mech’s response to this was to put Terveer under “heightened scrutiny” supervision by Mech and to generate an evaluation of the project to which Terveer had been assigned, even though it wasn’t finished, that was “extremely negative.” Terveer got into an argument with Mech about this evaluation, and Mech told him that he was “damn angry” that Terveer had threatened to bring a claim for wrongful discrimination and harassment. According to Terveer, Mech ended his tirade with the statement, “You do not have rights, this is a dictatorship.”

Early in 2011 Mech issued another negative evaluation of Terveer and put him on 90-day written warning, which could lead to Terveer not receiving the pay increase he would ordinarily receive. Terveer then initiated a discrimination claim with the EEOC. An attempt by another agency officer to get him transferred away from Mech failed when Mech’s supervisor said that Terveer was “on track to be terminated within six months.” As things deteriorated further for Terveer, he finally filed a formal complaint on November 9, 2011, alleging discrimination because of religion and sex, sexual harassment, and reprisal. Terveer had been suffering emotional distress from the situation and ended up taking lots of leave time, ultimately claiming that he was constructively terminated on April 4, 2012, because he could not return to the workplace to confront Mech and Christopher. The Library formally terminated him, and his appeal within the Library’s grievance process was unsuccessful. The agency issued a decision on May 8, 2012, denying his discrimination claims. He filed suit on August 3, 2012, alleging violations of Title VII and the constitution, as well as Library of Congress regulations and policies.

The court faced a variety of legal issues in ruling on the defendants’ motion to dismiss the case, the most serious of which was the failure of Terveer to pursue various administrative remedies before he resorted to a lawsuit. But perhaps the most important part of the opinion addresses the Defendant’s claim that the facts alleged by Terveer would not suffice for a legal claim of discrimination under Title VII. At the time that the Defendants filed this motion, federal courts had limited protection against discrimination for gay men to situations where a supervisor’s discriminatory conduct was motivated by judgments about a plaintiff’s behavior, demeanor or appearance that failed to conform to sexual stereotypes, and Terveer was not alleging that his behavior or appearance failed to conform to stereotypes about “manly men.”

But Judge Kollar-Kotelly saw Title VII’s protection as broader than these traditional gender stereotyping cases. “Under Title VII,” she wrote, “allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim. Here, Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ and that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the (Library of Congress),’ and that ‘his orientation as homosexual had removed him from Mech’s preconceived definition of male.'” This, found the judge, was sufficient to meet the burden under the Federal Rules of Civil Procedure to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since Terveer had alleged that the Library had denied him promotions and created a hostile work environment because of his “nonconformity with male sex stereotypes,” Terveer could proceed with his claim.

The judge emphasized that the burden on the plaintiff to state a claim at this stage of the litigation is “relatively low” when a court is deciding a motion to dismiss, before there has been any discovery in the case. Interestingly, the judge found another basis for Terveer’s Title VII claim in the religiously-motivated bias of his supervisor, observing that past courts had allowed claims of discrimination in such cases. “The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual,” she wrote, refusing to dismiss Terveer’s religious discrimination claim under Title VII. The judge also found that Terveer’s factual allegations would be sufficient grounding for a claim of a “retaliatory hostile work environment.” However, she noted, having found that Terveer’s claims are covered, at least at this early stage in the case, under Title VII, the court would have to dismiss his constitutional due process and equal protection claims, as the Supreme Court has made clear that Title VII is the exclusive remedy for federal employees with discrimination claims that come within its scope.

The bottom line for this ruling was that although certain claims were dismissed for failure to exhaust administrative remedies, the court refused to dismiss the sex and religious discrimination claims, as well as the retaliation claim. In so doing, the court made history with its acceptance that a gay man who was not gender non-conforming in appearance or behavior could assert a sex discrimination claim when a supervisor’s own religiously-inspired stereotyped notions of proper sex roles motivated adverse treatment of the gay employee.

While such a ruling is most welcome, it would probably be premature to suggest that ENDA is not needed. This is one non-precedential ruling on a pre-trial dismissal motion by a single federal judge. However, it reflects the broadening trend of defining sex under Title VII reflected in the growing body of cases rejecting motions to dismiss such claims brought by transgender plaintiffs, and may portent more definitive rulings expanding Title VII’s sex discrimination ban to claims brought by otherwise-gender-conforming LGBT plaintiffs.